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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
||Royal Courts of Justice
London WC2A 2LL
||10th December 2015
B e f o r e :
MR JUSTICE CRANSTON
Computer-Aided Transcript of the Stenograph Notes of
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Mr R McCracken QC (instructed by Dutton Gregory LLP) appeared on behalf of the Claimant
Mr S Stemp (instructed by Bournemouth Borough Council) appeared on behalf of the Defendant
Mr Z Simons (instructed by Ellis Jones Solicitors) appeared for the Interested Parties
HTML VERSION OF JUDGMENT (APPROVED)
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MR JUSTICE CRANSTON:
- The claimant applies for judicial review of a decision made on 19 March 2015 by Bournemouth Borough Council ("the Council") to grant planning permission to demolish a building known as Radcliffe Court, 51 Manor Road, Bournemouth, and to erect a replacement building. Radcliffe Court comprises a large detached Victorian villa, set out in considerable grounds. It is an unlisted building but lies within the East Cliff Conservation Area. The building is divided into 14 flats presently but is unoccupied.
- The claimant is a beneficiary of the Meyrick Estate 1968 Combined Trust ("the Trust" or "the estate"). The estate previously owned Radcliffe Court and benefits from restrictive covenants in relation to the future development of the site. It also owns other historic properties within the East Cliff area of Bournemouth and is a substantial land owner in the region. It is based on family inheritance.
- There is a witness statement from George Meyrick, a director, who manages the Bournemouth part of the Trust properties. In that witness statement he emphasises that the estate's approach to its properties is long term and puts at the forefront the importance of the character of the area, both for its own sake and its effect on the value on its properties. Mr Meyrick has an emotional attachment to Bournemouth, as he explains, as well as a financial interest in the conservation of the area.
- The defendant Council is the local planning authority area.
- The first interested party, which I call "the applicant" in the judgment, Linwood Park Ltd, are developers and own commercial units in the region. Radcliffe Court Freehold Ltd ("RCFL"), the second interested party, was incorporated for the purpose of being nominated to hold the freehold of Radcliffe Court upon leasehold enfranchisement in 2005. Tyrell Investments Incorporated, as it should be described, the third interested party, owns the entire shared capital of RCFL and a number of flats within Radcliffe Court. It is managed by board of directors based in Jersey.
- The three interested parties, their directors and the family members of the directors acquired the entirety of the propriety interest in Radcliffe Court between 1998 and 2010 by purchase of the head lease and the flats, and by leasehold enfranchisement, whereupon the head lease was extinguished and transferred to RCFL. The building was occupied until service of a repair notice by the Council on 19 May 2005.
- The applicant obtained planning permission in August 2009 for the extension and refurbishment of the existing building. Four years later in February 2013, Tangent Chartered Surveyors, instructed by the applicant, produced a viability assessment. It explored the viability of the 2009 planning permission, considering two scenarios: the first being simple refurbishment of the building in its current form and layout; the second for the development for conversion and refurbishment in line with the 2009 permission. In its opinion, refurbishment was not considered to be a viable proposition due to the condition of the building and the inefficient use of space verses return.
- In July 2013, the applicant applied for planning permission for the demolition of Radcliffe Court and for the erection of a five storey block of 14 flats with basement, surface parking and bin, and cycle stores. The District Valuer Service ("the DVS") was commissioned by the Council to report on viability, which it did in a report subsequently revised in early June 2014.
- That month English Heritage informed the Council that the lamentable state of Radcliffe Court did not mean that it could not be reinstated once again to its former respectable character. However, the letter conceded, English Heritage had not seen any viability studies or evidence of marketing campaigns. The proposed development in the application would further erode the special character of the conservation area. English Heritage was not convinced that the demolition of Radcliffe Court was necessary. The view expressed in that letter was repeated in later letters from English Heritage.
- The claimant objected to the application and, as one part of his case, submitted a memorandum to the Council in July 2014. That examined the accounts of RCFL to draw the conclusion that it was unlikely that more than £12,000 had been spent on repairs and maintenance during RCFL's ownership of the building. The claimant brought judicial review once the applicant obtained planning permission on the basis of noncompliance with heritage and conservation policies. The Council agreed to submit to a consent order quashing the permission it had granted.
- The applicant then submitted a new planning application along very similar lines in September 2014. There was a report from a further assessment from Tangent about whether the permitted scheme could be viably implemented, its conclusion being that refurbishment would produce a significant loss. In addition, in early December 2014, Sturt and Company, Chartered Surveyors, reported on commercial viability, considering the commercial viability of the building for office, education, community and tourism uses. Its conclusion was that the building had already reached the end of its economic life. It was not fit for any residential, commercial or communal use and had been condemned. Four years of marketing had confirmed this. The Sturt report concluded that the conversion to residential use was the highest end use for the building and, as this was not viable, no other commercial use would be either.
- There are a number of objections to the application. The claimant submitted a written deputation in February 2015 which asserted that a restoration scheme for Radcliffe Court was viable. It appended a letter from surveyors, Intelligent Land, dated 10 February 2010, which stated that in their opinion restoration and refurbishment of Radcliffe Court would be viable. It also appended a letter dated 11 February 2015, from Intelligent Land to RCFL, which included an offer from the claimant to purchase Radcliffe Court for a cash sum of £1.3 million in order to carry out a refurbishment of the property. The claimant's solicitors wrote that the money was readily available in its client account. The offer was rejected.
- On 11 February 2015, the claimant also sent material to the Council about the neglect of Radcliffe Court and the lack of spending over the years on maintenance and repairs.
- The Council's Planning Board was to consider the application in mid February 2015 but that meeting was deferred to enable officers to assess the additional information which had been received from Intelligent Land and the claimant.
- The Council sought the views of the DVS. It produced a response in a letter dated 3rd March, Updated Viability Review. The DVS had produced an earlier review, as I have noted. In the letter the DVS stated that it had received the Council's instructions to undertake an updated viability review of the new planning application for the refurbishment of 14 apartments in Radcliffe Court. It explained that it used the information from both Tangent and Intelligent Land. It then summarised its assessment and compared that to the values which Tangent and Intelligent Land had submitted.
- First, it considered development value. It then turned to development costs. In certain respects Intelligent Land had not provided details supporting its view under the various heads by comparison with Tangent which had. The DVS noted that build costs for the refurbishment option were £2,440,000; pursuant to the 2009 permission they were £2,873,000. After considering other costs, professional fees, contingencies, section 106 costs, marketing costs and finance costs, the DVS turned to land value/costs. It noted that the owners had paid in total £1,134,000 to purchase all of the apartments and the freehold, purchases which had taken place over a period of years. It noted that the applicant was using that purchase price as the land value:
i. "whereas there are many cases where the planning inspectors had discounted the historic price when calculating the land value".
- The DVS then noted that Intelligent Land had offered on behalf of the claimant the £1.3 million for the site which they contended was viable.
- Under the heading "Overall Assessment", the DVS returned to the issue of residual land value which they had dealt with under the land value/costs heading. The letter said that the DVS had adopted a residual land value of £536,721 for the current refurbishment scheme. The updated 2009 planning consent showed a deficit of £111,660. The letter continued that if the historic costs of purchasing the apartments was used as the land value, both the current scheme and the 2009 scheme were even less viable. There was therefore a loss to the land owner:
i. "[W]e consider that it is likely that the flats will not be refurbished nor will the extant  scheme be delivered. Overall we are of the opinion that following our values and costs both the current scheme and the  scheme are not viable which is agreed with Tangent....
ii. [I]t may be pragmatic for Bournemouth Borough Council to allow the building to be redeveloped as a new build scheme which may deliver some section 106 and affordable housing."
- As to the claimant's offer of £1.3 million, the DVS said, as it had previously stated, that both Tangent and the DVS itself were of the opinion that that level of land value the scheme was not deliverable and that value was not supported with evidence.
- On 13 March 2015 Intelligent Land wrote to the solicitors for RCFL, reiterating the £1.3 million offer and to "clarify" that the offer was not dependent on the outcome of any viability assessment:
i. "Our client is willing to undertake the restoration of the building whether this results in a profit or a loss financially."
- The officer's report for the meeting of the Council's Planning Board, dated 16 March 2015, explained under the heading "Background and update" the deferral of the meeting from February and also stated that the 2014 planning permission would be given little weight. After setting out the national and local planning policy issues, the report turned to the opinions of the various parties. The Council's Heritage Officer considered the existing building was a positive contributor to the conservation area (paragraph 18).
- The report said that the replacement building, though of differing architectural style to the existing building, could potentially be of a high quality design and appearance, and make a positive impact on the character and appearance of the area to which some weight could be given (paragraph 81). It then acknowledged that redevelopment of the site would result in an improvement of the appearance of the frontage (paragraph 83). The proposals would bring the site back into active residential use (paragraph 84). That use would provide modern high quality apartments on previously developed site on a sustainable location (paragraph 85). The proposals would also potentially generate economic activity through the construction process (paragraph 86) and potentially generate economic activity (paragraph 86).
- Despite the benefits, including some public benefits, the report considered that they were not substantial. Therefore, it concluded, the applicant had not demonstrated that the substantial harm was necessary to achieve substantial public benefits outweighing their harm or loss (paragraph 87). The report thus addressed the test stated in paragraph 133 of the Planning Policy Framework ("the NPPF"). In considering the second limb of paragraph 133 it noted that despite four years of marketing and an overt planning process, no community user had emerged to purchase the site and save the asset (paragraph 124). The officer's report then referred to possible funding from, amongst others, the Meyrick Charitable Trust. It stated that the level of finance available to spend to date indicated that the cost of conservation of the building could not be met by the charity (paragraph 139).
- The report turned to the issue of deliberate neglect. It noted at paragraph 144 that paragraph 130 of the NPPF requires that no regard should be given to the deteriorated state of a heritage asset that is due to deliberate neglect. The report said:
i. " Deliberate neglect can be taken to imply a conscious decision to fail to take proper care of the heritage asset."
- Over several paragraphs, such as paragraph 148, the report reviewed the history of Radcliffe Court and concluded that although it would appear that the land owners (the applicant) could have taken remedial works to limit the deterioration of the building, there was evidence of efforts to secure it against unlawful access (paragraph 152). Paragraph 153 of the report concluded:
i. " It could therefore reasonably be concluded ... that the applicant has not maintained the condition of the building but this does not constitute neglect, in so far as it is difficult to say that there is evidence of deliberate neglect or damage to the buildings particularly as land ownership and control of the buildings' condition falls with other land owning interests. In this respect the conclusion accords with the district valuer who concluded that:
ii. 'It is difficult to establish whether the asset has been deliberately neglected or damaged.'"
- At paragraph 160 the report noted that the proposed scheme reserved the design and appearance of the building. The weight therefore attributable to the potential public benefits arising had to be limited.
- At paragraphs 172A, 172B and 172C the report addressed the information provided by the claimant in February 2015. It stated that if the claimant's assertion was proved to be viable this would materially affect the planning assessment and its recommendation (172A). The report summarised the DVS's letter of 3 March 2015, which was attached to the report. The findings of the DVS were that, having regard to land and sale values, the developer would suffer a major loss and the current scheme and the 2009 scheme were not viable. The DVS had considered the applicant's proposed purchase at £1.3 million but discounted that as not being a realistic sum to deliver the acquisition of the site based on known development values. The amount was not supported by any detailed appraisal:
i. "The assertion therefore by the claimant on the basis of the information provided has been independently tested and demonstrated not to be credible and therefore that the claim that the refurbishment of the building is to be viable to be unproven (sic)."
- Responding to a comment of English Heritage regarding the service of a notice under section 215 of the Town and Country Planning Act 1990, the report stated that such a notice allowed the local planning authority to require the maintenance of land where its condition adversely affected the amenity of the neighbourhood. The decision to do so, it said, was wholly at the discretion of the local planning authority. Although it was accepted that the site was in poor condition the local planning authority had decided that action was not justified given scarce resources and the merits did not justify its issue in relation to "a site when the Council has previously been minded to allow the loss of the building".
- The report then noted the objections of the Bournemouth Civic Society and the Ancient Monument Society and also the claimant. In relation to the latter the report stated that the refurbishment and the restoration of the existing building was not a viable option.
- The report concluded that whilst approval of the application would result in substantial harm to a heritage asset it was considered that the loss was justified under paragraph 133 of the NPPF.
- At the meeting of the Planning Board on 16 March 2015 the councillors heard, as is normal practice, from supporters and objectors. One of the supporters was a person acting on behalf of the residents of the nearby Dunholme Manor who described the dilapidated state of the entire building, and the fact that persons had broken in, they including the homeless and drug addicts. The claimant was unable to attend the meeting but he was represented and his representative spoke for about five minutes. The applicant then summarised the case in favour of the grant of planning permission.
- The councillors were then addressed by the Council's legal adviser. Amongst other points she referred to paragraph 130 of the NPPF on deliberate neglect and said that:
i. "What it is basically saying is that if someone has deliberately neglected the property to get planning permission or some other reason, that should be disregarded in your consideration of the matter."
- She later stated that in considering deliberate neglect, that was a neglect above and beyond the norm that is usually done to ensure that someone can obtain planning permission. She said that the District Valuer had agreed that it was finely balanced, but in his view there was no evidence that the property had been deliberately neglected. Subsequently, she said that paragraph 130 of the NPPF addressed whether there was evidence of deliberate neglect or damage to a heritage asset.
- The councillors themselves debated the matter. The chairman of the Planning Board referred to the "ghastly" state of Radcliffe Court, which was observable from the private residences of Dunholme Manor. He then made certain comments about the claimant in relation to Cliff End Hotel, another property in which the claimant had an interest. Other councillors referred to the state of dereliction of the building. Councillor Whittaker referred to the fact that there was no prospect of the building ever being able to be refurbished for reuse. He also referred to the reports which had come from the claimant late. The Council Planning Board then decided in favour of granting planning permission.
- I digress from the narrative to say this. There is a statement from Mr Meyrick where he rejects, in some detail, some of the critical statements made by the councillors at the meeting of the Planning Board. It is not for me to evaluate what was said by the councillors or by Mr Meyrick. However, it seems to me, on reading Mr Meyrick's statement that, to put it no higher, some of the councillors were misinformed about matters, in particular the matter of the Cliff End Hotel.
- Formal permission was set out in a decision notice dated 19 March 2015. Condition 3 reads as follows:
i. "3. Demolition to be continuous with redevelopment works. The demolition hereby approved shall only be undertaken in one continuous uninterrupted operation with the redevelopment works, in accordance with planning application 7-2014-12459-K and subsequent reserved matters.
ii. Reason: to prevent premature demolition of the existing building and in accordance with the National Planning Policy Framework."
- Mr McCracken QC advanced four grounds of challenge to the Council's decision to grant the applicant planning permission. The first was based on what he contended was a misunderstanding of the concept of viability in paragraph 133 of the NPPF. Paragraph 133 provides:
i. "133. Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss, or all of the following apply:
- the nature of the heritage asset prevents all reasonable uses of the site; and
- no viable use of the heritage asset itself can be found in the medium term through appropriate marketing that will enable its conservation; and
- conservation by grant-funding or some form of charitable or public ownership is demonstrably not possible; and
In this case the Council accepted that the proposed development would amount to substantial harm to the conservation area, so it had to be satisfied that the proposal met the four tests in the bullet points of the second limb of the paragraph.
- the harm or loss is outweighed by the benefit of bringing the site back into use."
Mr McCracken submitted that the proposal did not meet the second and third bullet points. The report of the DVS on which the Council and its officer's report relied meant that bringing Radcliffe Court back into use in accordance with the refurbishment scheme was viable. That was because the DVS report had found that the scheme would lead a residual value of £556,441. In his submission, the only rational inference was that, given that, the scheme was viable or, as he put it in the alternative, the approach of the Council in treating the refurbishment as not viable was irrational. In his submission, the Council never grappled with the question whether the historic purchase price should be taken into account. Instead of making an assessment on the basis of the possible residual value, both the DVS and the officer's report had taken into account the historic purchase price to reach their conclusion.
In Mr McCracken's submission that was a misunderstanding of the meaning of viability in paragraph 133 of the NPPF. It was a fundamental error. The tests in paragraph 133 had to be applied at the time that an application was under consideration so historic purchase price was irrelevant. In his written reply Mr McCracken advanced on his earlier case by submitting that a viability assessment would be unworkable if historic purchase were part of it. The test, in his submission, would effectively protect, as a matter of government policy, purchasers against bad bargains or adverse market movements.
In any event, Mr McCracken submitted, even if the historic price was taken into account, the claimant's offer, even on the DVS figures, was viable. Mr McCracken directed attention to the claimant's offer to purchase Radcliffe Court in February 2015. The officer's report had not properly addressed that matter. In considering the marketing to be engaged in relevant to the second bullet point of paragraph 133, the Planning Policy Guidance ("the PPG") accepts that its aim is to reach all potential buyers who may be willing to buy a use for the site that still provides for its conservation to some degree. The guidance continues that if such a purchaser will come forward there is no obligation to sell to them but redundancy will not have been demonstrated. Mr McCracken underlined the fact that the claimant had made it clear to the Planning Board that his offer remained valid whether or not refurbishment of Radcliffe Court made him a profit or a loss. The offer had not been contingent on the viability of the restoration scheme.
Mr McCracken contended that the Council should have considered the claimant's offer in light of the third bullet point in paragraph 133, since it was akin to charitable ownership. In as much as the claimant's offer had been before the meeting of the Planning Board, it was addressed in the officer's report following the conclusion that the four limbs of paragraph 133 of the NPPF were satisfied. The disadvantage to the claimant was compounded because his representative was given no opportunity to respond to the criticisms which had been made by the applicant.
In addressing viability the PPG says that "there is no standard answer to questions about viability nor is there a simple approach for assessing viability" (paragraph 2). The guidance also states that a site is viable if the value generated by its development exceeds the costs of developing it and also provides sufficient incentive for the land to come forward and the development to be undertaken (paragraph 16). It then says that viability assessment in decision-making should be based on current costs and values and that the planning application should be considered in today's circumstances (paragraph 17). At paragraph 24, the guidance states that a competitive return for the land owner is the price at which a reasonable land owner would be willing to sell their land for development. That price would need to provide an incentive for the land owner to sell in comparison with the other options available. Those options may include the current use value of the land or its value for a realistic alternative use complying with planning policy.
In my view, the lesson to be drawn from the guidance is that it is insufficient in assessing viability simply to focus on whether or not there is a positive residual land value and to decide viability on that basis alone. A thread through the paragraphs of the guidance is that viability depends not only on the value generated by a development but also whether it provides an incentive for development to occur. Further, there is no rule excluding historic land costs. The DVS letter mentioned that some planning inspectors discount historic price when calculating land value, but that is far from being determinative as to how viability is to be assessed.
In this case, feeding into viability was the Intelligent Land assessment and the claimant's own offer to purchase the site, even if that resulted in a loss. Against that, however, were the Tangent and Sturt reports. Importantly, there was the assessment of the independent District Valuer Service that neither refurbishment nor the 2009 scheme was viable, and that a pragmatic scheme might lead the Council to allow redevelopment of the site. I can well understand Mr McCracken's attempts to parse the DVS report but, in my view, they come up against its clear conclusion that neither the refurbishment nor the 2009 scheme were viable. That conclusion was conveyed accurately to members in the officer's report and in the presentation to the Planning Board by the planning officer. The officer concluded that the evidence as regards other viable uses was sufficient and that was a matter of professional judgment. Whether it was right or wrong it was not irrational.
As to the claimant's offer, the officer's report summarise it accurately but considered that it was not credible. That was an exercise of professional judgment. I cannot conclude that it was flawed. The passages in the officer's report did follow the conclusion on paragraph 133, but that was because these had been inserted following the deferment of the February meeting of the Planning Board and receipt of the DVS letter. The claimant's agent was not able to reply to the applicant's analysis but that was a product of the standard procedures in planning committees and should have been anticipated.
As to the third bullet point in paragraph 133 of the NPPF, there was no evidence before the planning officer or the Planning Board that the claimant's offer amounted to "charitable ownership" within the meaning of the paragraph.
Ground 2: deliberate neglect
The NPPF at paragraph 130 provides:
i. "Where there is evidence of deliberate neglect of or damage to a heritage asset the deteriorated state of the heritage asset should not be taken into
ii. account in any decision."
iii. Paragraph 14 of the PPG states:
Mr McCracken's argument in this regard was that under paragraph 130 of the NPPF the Council had to disregard the dilapidated state of Radcliffe Court since there was evidence of deliberate neglect. In fact, the officer's report and the councillors themselves in their discussions at the Planning Board had placed significant weight on the site being, to put it bluntly, derelict. Mr McCracken drew attention to paragraph 153 of the officer's report, which accepted that the applicant had not fully undertaken remedial works to maintain the condition of the building, but then concluded that this did not constitute deliberate neglect.
iv. "Where there is evidence of deliberate damage to or neglect of a heritage asset in the hope of making consent or permission easier to gain the local planning authority should disregard the deteriorated state of the asset."
In Mr McCracken's submission the Council first, misunderstood the term 'deliberate neglect' as meaning that there had to be proof of an intentional scheme to dilapidate the building with the aim of securing planning permission. He referred in particular to what the legal adviser had told the Planning Board. Secondly, there was the Council's failure to consider in either the officer's report or at the Planning board meeting the evidence the claimant produced in its memorandum of 21 February 2015 about the expenditure of only £12,000 on the building since 2005. Despite an assertion by the Council, Mr McCracken explained that this memorandum was not on the Council's website with other documents relating to the application for planning permission. The service by the Council of a repair notice in 2005 that the property was unfit for human habitation, and the failure to act after that notice demonstrated, in his submission, the extent of deliberate neglect.
To my mind the definition of 'deliberate neglect' adopted in the officer's report cannot be faulted. At paragraph 145, the report states that it can be taken to imply a conscious decision to fail to take proper care of a heritage asset. It seems to me that the guidance at paragraph 14 draws the net too tightly in adding that the neglect will be in the hope of making permission easier to gain.
In this case the officer's report considered the evidence about the history of the site and what the applicant could have done after it had attained the 2009 consent and all the leases in 2010. Given that context and the other land owning interests in the property it concluded there was no deliberate neglect. In my view, that conclusion cannot be challenged.
There was the gloss to the definition contained in the officer's report when the legal adviser addressed the meeting of the Planning Board. No doubt she drew on paragraph 14 of the guidance when she said councillors should consider deliberate neglect to obtain planning permission. But she immediately added "or some other reason". Since deliberate neglect has to have something behind it, for otherwise it would not be deliberate, she was not in error in her explanation. Admittedly, she returned to the narrower notion of deliberate neglect to obtain planning permission but subsequently she referred to paragraph 130 in its pristine form. In my view, the Planning Board could not be said to have misapplied the concept of deliberate neglect.
As to the evidence of what actually was spent on repair and maintenance, there was indeed no specific mention of the claimant's memorandum of 19 February 2015. However, that memorandum had been available to the Planning Board, there being the reference to the claimant's evidence "late coming in". Further, the Planning Board may have been around this circuit before, in that with the same composition as in 2015 it may have received the defendant's memorandum on the same subject dated 18 July 2014. I note that the applicant has adduced evidence of total expenditure of £151,000 on maintenance and repair from 1999 to January 2014. However, there is no need for me to enter the debate as to what was or what was not spent. The fact is that there must be some doubt about whether the claimant was examining the correct accounts when opining on the issue in his memorandum of 19 February 2015.
Ground 3: consistency
Mr McCracken's point here was that the Council was irrationally inconsistent in its approach to the consequence of the condition of the site. It had concluded that the site was as described earlier, derelict, and that was echoed by the councillors at the meeting on 16 March 2015. Nevertheless, the officer's report had concluded that the service of the notice under section 215 was not justified. That inconsistency, in Mr McCracken's submission, was irrational.
In my view, this aspect of the challenge does not get off the ground. Section 215 does not require service of a notice. It was a matter for the Council's discretion and it was for the Council to decide whether serving a notice would be an expedient way of securing the site's improvement. The officer's report considered this and explained that the cost and the administrative burden of serving a notice justified the decision not to do so. The report could have added that a section 250 notice would not deal with aspects of the site such as the anti-social behaviour by squatters. In my judgment it is not open to question the failure to serve a notice as an error of law. I note that the decision not to serve a notice is not of course challenged in this judicial review.
Ground 4: condition 3
Mr McCracken's point here was that the grant of permission for development as well as demolition did not secure the redevelopment, since there was nothing practically stopping the applicant from partially implementary permission by demolishing and stopping there or shortly afterwards. In his submission, condition 3 was not apt to achieve the redevelopment aim. In his oral submissions he also took aim at condition 1 as well. That, I am afraid, was an unacceptably late point at which to raise the issue.
In essence, Mr McCracken's argument about condition 3 was that the proceedings for its breach would not be sufficient to achieve the Council's aim. The issue of whether a pause in redevelopment amounts to a lack of one "continuous operation" is not susceptible to a sufficiently clear resolution. He referred to what was, he contended, the accepted practice where a requirement was inserted in this type of condition for a contract for rebuilding to be in place before demolition.
In my judgment, these submissions go nowhere. It is not alleged that condition 3, or for that matter condition 1, is unlawful. For the interested parties Mr Simons made the point that the suggested condition was based on a paragraph in PPG 15 which was cancelled in 2010. More importantly, in my view, is that it applies to demolition consent rather than demolition and development. In my view there was no defect in condition 3. Indeed, close analysis of Mr McCracken's own condition by Mr Skemp, for the Council, casts a shadow over it: it seems to bear the same defects but without the benefits of the Council's actually imposed condition.
For the reasons I have given the claim is dismissed. Mr Skemp?
MR SKEMP: My Lord, the only other matter then is costs.
MR McCRACKEN: I do not think the schedule is going to come into it because this is an Aarhus claim, so the total amount that the claimant can be ordered to be pay is governed by CPR 45.1 and the Practice Direction of 45PD6. So I do not think in practice the schedule makes any difference. I am assuming the schedule is going to reach a figure in excess of £5,000.
MR SKEMP: Yes, the figure is in excess of £5,000. Costs to £5,000.
MR JUSTICE CRANSTON: Costs to that extent then.
MR SIMONS: There is no space for us.
MR McCRACKEN: The other matter obviously is our application to appeal in relation to grounds 1 and 2. Your Lordship will appreciate that ground 1 is a very important point of law, that is whether or not the question of viability has to be assessed in the context of historic purchase price or otherwise. I appreciate your Lordship has decided against me. Your Lordship will recollect the passage in the Planning Policy Guidance that says we look at the present and for these purposes I simply submit manifestly that is capable of leading to a different conclusion from the one that your Lordship reached. So without inviting your Lordship - I would not dream of doing it - to cast doubt in his own judgment, my submission is simply there is a realistic chance that the Court of Appeal might take a different view of that and it is an important point.
I think in the light of the fact that your Lordship commented that the guidance in relation to historic neglect was probably wrong, in those circumstances, it is appropriate to grant permission on ground 2. I appreciate that our motive for seeking permission on ground 2 relates rather to the application of it. But it would be useful for the Court of Appeal to be able to consider and endorse your Lordship's observations about the Planning Policy Guidance. So I ask for permission to appeal in relation to both ground 1 and ground 2.
MR SKEMP: My Lord, in relation to those points very briefly. Ground 2 first of all. Paragraph 14 of the guidance is what it says that it is. Taking the matter to the Court of Appeal in my submission will take the matter no further. It might be a matter for other bodies by not the Court of Appeal. The point on the first ground: the guidance in my submission is a matter of decision taken on a case by case basis.
MR JUSTICE CRANSTON: Mr McCraken, in the circumstances I refuse permission.
MR McCRACKEN: Thank you very much indeed.
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