Planning permission – Conservation area – Heritage asset – Claimant seeking judicial of decision to grant planning permission for development of former brewery – Whether defendant local authority applying presumption in favour of preserving and enhancing surrounding conservation area – Application granted
The defendant local authority granted planning permission and conservation area consent to the first interested party to demolish buildings at, and redevelop, the site of a former brewery in Ulverston, Cumbria. The first and second interested parties were the owners of the site. It was common ground that the site was located within a heritage asset being the local conservation area.
The claimant lived about 200 metres from the site and belonged to a residents’ group which opposed the development. She applied for judicial review of the defendants’ decision to grant permission on the grounds, amongst other things, that the defendants had wrongly failed to give priority weight to the impact of the development on the local conservation area by failing to apply the presumption in favour of preserving and enhancing the surrounding conservation area pursuant to se5ion 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.
Held: The application was granted.
The duty imposed by section 72(1) meant that, when deciding whether harm to a conservation area was outweighed by the advantages of a proposed development, the decision-maker should give particular weight to the desirability of avoiding such harm. There was a strong presumption against the grant of permission in such cases. The exercise was still one of planning judgment but it had to be informed by that need to give special weight to maintaining the conservation area: East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137; [2014] 1 EGLR 23 applied.
It was clear that the first part of paragraph 132 of the National Planning Policy Framework (NPPF) sought to express the section 72(1) presumption. The remaining provisions then gave guidance on how it might be applied in a case involving a heritage asset. So if there would be substantial harm to a listed building permission would have to be either exceptional or wholly exceptional. If there was to be substantial harm to a non-listed heritage asset, then consent should be refused unless that harm was necessary to achieve substantial public benefits or the particular matters set out in (a) to (d) applied. If the harm was less than substantial it had to be weighed against the public benefits including its optimum viable use. Even if the harm would be less than substantial so that paragraph 133 of the NPPF did not apply but paragraph 134 did, the harm still had to be given considerable importance and weight, following the injunction laid down in section 72(1). The presumption therein needed to be demonstrably applied. In a paragraph 134 case, the fact of harm to a heritage asset was still to be given more weight than if it were simply a factor to be taken into account along with all other material considerations. Paragraph 134 needed to be read in that way. By way of contrast, where non-designated heritage assets were being considered, the potential harm should simply be taken into account in a balanced judgment. It followed that paragraph 134 was something of a trap for the unwary if read, and applied, in isolation: R (on the application of Forge Field Society) v Sevenoaks District Council [2014] EWHC 1895 (Admin); [2014] PLSCS 182 followed.
It was clear from the decision in Forge Field that unless there was clear and express recognition, and application, of the presumption, the mere fact that paragraph 134 on its own was apparently followed would not save the decision. That was so even where there was express reference to the presumption and even where, as here, there was reference at the outset to paragraph 132 when reciting that part of the NPPF. None of that mattered if all that was actually done was a simple balancing exercise. However, once he had found that there would be some harm to the conservation area, the officer was bound to give that harm considerable weight in the planning balance. That had not been done in the present case, where the only reference point was paragraph 134. The mere fact that the impact was mentioned in the officer’s report was irrelevant. What was at issue was not the acknowledgment of the harm but how it was dealt with. Nor could it be said that it had to be obvious from the references thereto that the author of the report was in fact applying the presumption. There was no evidence of that at all. That being so, it followed that the report and hence the decision based upon it, were flawed.
There was no basis for exercising the court’s discretion not to quash the decision. The whole issue of harm to, and preservation of the heritage assets constituted by the site was a major part of the planning debate. Given that, and the fact of a bare majority voting to grant permission, it was quite impossible to say that even with the application of the presumption, the result would have been the same. Therefore, the permission had to be quashed.
Ned Westaway (instructed by Richard Buxton Environmental and Public Law Solicitors) appeared for the claimant; Jonathan Easton (instructed by South Lakeland District Council) appeared for the defendants; David Manley QC (instructed by DLA Piper UK LLP Solicitors) appeared for the interested parties.
Eileen O’Grady, barrister
Read the transcript of R (on the application of Hughes) v South Lakeland District Council
