Town and country planning – Planning permission – Heritage asset – Claimant local planning authority applying to quash decision of inspector appointed by first defendant secretary of state granting planning permission for development of synagogue being heritage asset of historic and architectural significance – Whether inspector failing to give requisite considerable importance and weight to desirability of preserving features of special architectural and historic interest – Application granted
The second defendant developer applied for planning permission and listed building consent to modify the United Hebrew Synagogue in Leamington Road, Blackpool, and add five self-contained two-bedroom flats at the back of it. The design and features of the property were of considerable historic and architectural interest and it was a grade II listed building on the Heritage at Risk Register kept by Historic England (formerly English Heritage). It had been deconsecrated in 2012.
Historic England was consulted and expressed concern at the lack of integration of the synagogue with the residential part of the site, stating that the development would mean reduced floor area, would endanger future use of the synagogue and would do more harm than good, applying criteria taken from the national planning policy framework (NPPF). The claimants refused the applications stating in their reasons that to grant permission would breach certain policies set out in the Blackpool Local Plan. An inspector appointed by the first defendant secretary of state allowed the second defendant’s appeal and granted planning permission and listed building consent, subject to conditions.
The claimants applied under section 288 of the Town and Country Planning Act 1990 and section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 for an order quashing the inspector’s decision to permit development of the site which they considered to be detrimental. The claimants’ essential argument was that the inspector had failed to give the requisite “considerable importance and weight” to the desirability of preserving, i.e. avoiding harm to, the synagogue and its features of special architectural and historic interest, which would be damaged if the proposals were allowed to proceed.
Held: The application was granted.
(1) The relevant parts of the NPPF were material considerations for the purpose of an appeal such as the present. The concept of “preserving” the setting and features of a building in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 meant merely “doing no harm to” its setting and features. The assessment of the degree of harm to the listed building and its features of special architectural and historic interest was a matter for the inspector’s planning judgment, but he was not free to give that harm such weight as he chose when balancing it against countervailing public benefits. A finding of harm to the setting or features of a listed building was a consideration to which the decision-maker had to give “considerable importance and weight”. The reasons for a decision had to be intelligible and adequate, though they could be briefly stated; they must not give rise to a substantial doubt about whether the decision maker erred in law, e.g. by misunderstanding some relevant policy or other important matter or failing to reach a rational decision. There was no special onus on the decision maker requiring him to demonstrate positively that he had given considerable weight to the desirability of preserving the setting and features of a listed building. Generally speaking, a decision maker who works through the relevant paragraphs in part 12 of the NPPF (paragraphs 131-134) in accordance with their terms, would have complied with the section 66(1) duty: The Bath Society v Secretary of State for the Environment [1991] 2 PLR 51, South Lakeland District Council v Secretary of State for the Environment [1992] 1 PLR 143, South Bucks District Council v Porter (No. 2) [2004] 1 WLR 1953, Tewkesbury v Secretary of State for Communities and Local Government [2013] EWHC 286 (Admin); [2013] PLSCS 57, Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council [2014] EWCA Civ 137; [2014] 2 EGLR 85; [2014] EGILR 23 and Jones v Mordue [2015] EWCA Civ 1243 applied.
(2) This was a case in which it was common ground that the proposals entailed some harm to the historic and architectural features of the synagogue. It was not realistic to suppose that the inspector had been unaware of the provisions of paragraph 12 of the NPPF. The cumulative force of the claimants’ contentions was sufficient to persuade the court that the inspector had fallen into the error of giving less than considerable importance and weight to the finding of harm to the synagogue and its features of special architectural and historic interest and giving less than great weight to the conservation of the synagogue. He had erred in regarding harm to the significance of the synagogue as relatively slight and, because it had been relatively slight, he had decided that the weight to be given to that harm should also be relatively slight. Accordingly, claimants’ application was well founded and the inspector’s decision would be quashed.
Jonathan Easton (instructed by Blackpool Borough Council) appeared for the claimants; Sarah Reid (instructed by the Government Legal Department) appeared for the first defendant; The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
