High Court judgment on consideration of alternatives in the context of an application for listed building consent

The High Court has dismissed the statutory challenge in Clay v The Welsh Ministers [2018] EWHC 2104 (Admin). The Claimants, owners of a Grade II* listed building, sought statutory review of the Welsh Ministers’ dismissal of their appeal against the refusal of the local planning authority to grant listed building consent for a replacement roof covering. They argued that the issue before the Inspector had been whether their choice of roofing material or the choice favoured by the local planning authority was the more appropriate choice. There was a need to replace the original roof slates, therefore the Inspector was required to consider which option would be least harmful to the listed building in heritage terms. The Inspector had failed to do so. HHJ Jarman QC concluded that several alternative options were before the Inspector and that neither party to the appeal had invited the Inspector to choose between them. He had been invited either to uphold the appeal or to dismiss it. HHJ Jarman QC considered the decision of Carnwath LJ (as he then was) sitting as a judge of the High Court in Derbyshire Dales DC v SSCLG [2010] 1 P&CR 381 and held that s. 16(2) of the Planning (Listed Buildings and Conservation Areas) Act 1990 had not imposed upon the Inspector the wide duty to consider alternatives for which the Claimants were contending. Heather Sargent acted for the Welsh Ministers.