Listed building challenges ruled Totally Without Merit

01 Jan 2018

Planning and Environment

Mr Justice Hickinbottom gave judgment yesterday in two related challenges to public law decisions of the Welsh Government concerning the Grade II* listed former North Wales Hospital, Denbigh. This stunning Tudorbethan building has been allowed to fall into a state of abject dereliction by its owner, Freemont (Denbigh) Ltd.

To arrest the decline and bring the building back into use, the local planning authority, Denbighshire County Council, granted planning permission for a significant amount of enabling development in 2006. It worked into the associated section 106 agreement an obligation to pay £4.8m into a restoration fund – an obligation designed to crystallise after three years whether or not the underlying consent was implemented. When that consent expired unimplemented and the bank guarantor of Freemont’s obligations cast doubt on the enforceability of such provisions, the Council settled for a reduced payment from the bank (in a confidential agreement between those two parties) and released Freemont from any further obligations under that s106 agreement.

Having lost faith in the owner, the Council took advice from the Princes’ Regeneration Trust on the exercise of statutory powers using the settlement money. In due course the Council acted – probably saving the principal building from outright collapse.

In its first major intervention (2011-12) the Council served an urgent works notice and, in default of compliance, spent £940,000 and over a year on site introducing a temporary steel roof. The notices requiring repayment of that money were upheld, following a public inquiry, in 2015.

A repairs notice followed in May 2013, and then Denbighshire made a compulsory purchase order in 2014, confirmed following an inquiry, also in 2015. All this time, the owner spent nothing on repair.

The two 2015 decisions, both decisions of the Welsh Ministers, were the subject of High Court challenges and were heard together on the 4th March 2016.

The owner’s case in court was that the source of the money used for both purposes was obtained by fraud, deception, and abuse of statutory power. It was said that disclosure made by the Council (following information requests) of correspondence and confidential meetings contained “incontrovertible evidence of fraud”. It was said, too, that the Council had conspired with the Princes’ Regeneration Trust to promote a CPO unlawfully and in secret.

The Judge ruled decisively against these contentions, and others, and found both claims totally without merit, applying the recent Court of Appeal guidance on such rulings in Samia W v SoS Home [2016] EWCA Civ 82.

As a decision so obviously hopeless on its facts, it is perhaps not surprising that there are a limited number of legal principles at play. Nevertheless, of some interest is the Judge’s confirmation of the scope of matters to be taken into account by the Welsh Government, or Secretary of State, when representations are made by an owner under section 55 of the Listed Buildings Act 1990. In particular he held that the source of the money used by a local authority to carry out urgent works under section 55 of the Act is irrelevant [paragraph 72].

It also provides a vivid example of the challenges which can face local authorities when taking statutory action of this kind. This judgment is only a step on the challenging road which the Council is taking towards restoration and reuse of the hospital complex, set in the beautiful Clwydian countryside and once home to 1500 patients, the first mental hospital to look after Welsh speakers in Wales.

Harriet Townsend represented Denbighshire County Council in court and in the associated inquiries. The Court’s Judgment can be found here.