Planning permission – Listed building – Optimum use – Defendant local authority granting planning permission for development of Grade II listed house formerly occupied by Sir Arthur Conan Doyle – Development involving change of use from hotel to educational use – Claimant applying for judicial review of decision to grant permission – Whether defendants adopting incorrect approach to planning application – Whether defendants taking account of alternative optimum viable uses – Whether proposal complying specified local plan policies – Application dismissed
In 2010, the first interested party applied to the defendant council for planning permission and listed building consent for development to a Grade II listed house in Haslemere, Surrey. The house, Undershaw, had been built in 1890 as the private residence of Sir Arthur Conan Doyle and the author had lived there for more than 10 years. The house had been listed because of its literary associations and was said to be unexceptional architecturally. It had in the past been converted to a hotel, with considerable modifications being made for that purpose and the addition of a new wing. The interested party had purchased it in 2004 with a view to redevelopment. It had stood vacant since 2005 and had been allowed to deteriorate.
Planning permission was granted for residential development by conversion into eight dwellings but that permission was quashed by a decision of Cranston J: [2012] EWHC 1472 (Admin); [2012] PLSCS 123. Planning permission was subsequently granted for a change of use from hotel to educational use for 64 pupils with the erection of extensions and the carrying out of alterations following demolition of a modern extension and associated works.
The claimant applied for judicial review of the decision to grant planning permission and listed building consent for the redevelopment of the house contending that the defendant had adopted an incorrect approach to the application for planning permission. The optimum use of the property was as a single dwelling, the non-viability of which had not been established. Moreover, another optimum viable use was as a school for 30 pupils for which planning permission had already been granted and which still constituted a lawful fallback position. What was proposed in the current application would cause direct harm to the property and prevent a viable heritage deal from being realised, something to which the defendants should have had special regard and afforded a compelling basis for refusing permission for a more profitable but non-optimal use. Furthermore, the defendants had erred fundamentally in failing properly to apply the test under section 38(6) of the Planning and Compulsory Purchase Act 2004, because it was not complaint with certain specified local plan policies.
Held: The application was dismissed.
(1) Whether single residential use of the building was the optimum viable use was a matter upon which the defendants had to form a judgment. In the present case, there was no substance in the argument that the defendants had failed adequately to consider other viable uses, although officers had drawn attention to the inadequate marketing for its existing uses. There had been a history of consideration of other uses, none of which had ever been achieved or realised in practice. The court accepted that there was a need to consider alternative, less harmful uses of the same site when evaluating a proposal that would cause harm to a heritage site, the way in which that evaluation might be carried out would vary from case to case. The planning history from 2005 in this case spoke for itself, had been fully articulated in the officers’ report and had been a material consideration in any event: R (on the application of the Governing Body of Langley Park School for Girls) v Bromley London Borough Council [2009] EWCA Civ 734; [2009] PLSCS 246 and R (on the application of Forge Field Society) v Sevenoaks District Council [2014] EWHC 1922 (Admin); [2014] PLSCS 182 considered.
(2) The need for the defendants to weigh the harm against the public benefits of the proposal, including securing its optimum viable use, was a matter of planning judgment with which the court would be disinclined to interfere on the well-established approach to such matters. In the present case, the balancing exercise had been carried out lawfully and there was no basis for suggesting otherwise. The planning committee had plainly seen strong grounds for accepting the proposal because it provided much-needed educational and training facilities for part of the disabled community at the same time as preserving and protecting an important heritage asset from continuing dilapidation and enabling public access to it at appropriate times. That was pre-eminently a matter of judgment for the defendants.
(3) The planning committee’s attention had been drawn to section 38(6) and it would be surprising if the committee had not been fully familiar with its requirements in any event. The second interested party (Historic England) had made express reference to certain polices within the local plan in its representations, but its essential focus was on the national planning policy framework (NPPF). It could not sensibly be argued that the considerations which led to the decision actually made would have been any different if the officers’ report has set out in full every potentially relevant local plan policy and explained why there was a need to make a decision that departed from it. Moreover, given the essential conformity of the provisions of the local plan with the NPPF, it would be fanciful to suggest that any provision of the local plan would have overridden the analysis of the position within the NPPF.
Paul Stinchcombe QC and Ned Helme (instructed by Sharpe Pritchard LLP) appeared for the claimant; Timothy Mould QC (instructed by Waverley Borough Council) appeared for the defendants; David Forsdick QC (instructed by Macfarlanes LLP) appeared for the first interested party; The second interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read transcript: R (on the application of Gibson) v Waverley Borough Council
