One of the errors on the part of the local planning authority (“LPA”) in R (on the application of Gerber) v Wiltshire Council (see PP 2015/56) was a failure to notify English Heritage (now Historic England and so referred to here) in relation to an application received by it for planning permission for the construction of a solar farm on a site some 270 metres from a Grade II* listed building.
The effect of regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 (“the 1990 Regulations”) – at the relevant time – was that an LPA in England was required to notify Historic England when it received an application for planning permission for any development of land, and the LPA thought that the development “would affect the setting of a listed building or the character or appearance of a conservation area”.
In Gerber, though it should be borne in mind that this was only one of a catalogue of errors on the part of the LPA, the judge concluded that it was appropriate in the circumstances to quash the decision of the LPA to grant planning permission for the construction of the solar farm, rather than to exercise the discretion available to him.
A similar situation has since arisen in R (on the application of Loader) v Rother District Council [2015] EWHC 1877 (Admin), where the LPA had granted planning permission for a mixed development on a site close to a terrace of Grade II listed houses without notifying Historic England, in breach of regulation 5A of the 1990 regulations. In this case, however, the judge exercised her discretion not to quash the LPA’s decision to grant planning permission. Applying the principle laid down by the Court of Appeal in Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25, she concluded on the facts that the LPA’s decision would have been the same had Historic England been notified of the planning application and responded.
Some of the obvious confusion in this case, on the part of both Historic England and the LPA, as to the precise notification requirements arose in part from the fact that with effect from 15 April 2015, the Planning (Listed Buildings and Conservation Areas) (Amendment) (England) Regulations 2015 revised the content of regulation 5A of the 1990 regulation. One of those revisions has the effect, where a planning application is thought by the LPA to affect the setting of a listed building, of restricting the obligation to notify Historic England to circumstances where the listed building in question is classified as Grade I or Grade II*.
John Martin
