Town and country planning – Planning permission – Asset of community value – Second respondent council granting planning permission for development of 39 private sheltered apartments for elderly — Appellant seeking judicial review of that decision — Whether respondents failing to consult English Heritage and Victorian Society – Whether properly understanding National Planning Policy Framework – Whether failing to consider designation of proposed development site as asset of community value – Appeal allowed
In November 2014, the first respondent council granted planning permission to the second respondent for a development of 39 private sheltered apartments for the elderly on the site of a bowls club in Bexhill, together with associated communal facilities. The site comprised about 0.7 ha of open space surrounded by residential properties including, on one side, a Grade II listed terrace of late-Victorian dwellings. The site had been registered in 2013 as an asset of community value (ACV) under section 88(1) of the Localism Act 2011.
The development proposal involved the demolition of the existing bowls club buildings, the construction of a new clubhouse and an indoor bowling rink, the replacement of the two outdoor bowling greens with one new green and the erection of a block of sheltered apartments which would face the listed terrace. In granting permission, the first respondents’ considered two reports by their planning officer, which indicated that local plan policy on open space would not be compromised by the loss of one of the existing bowling greens. The relevant policy was in similar terms to para 74 of the National Planning Policy Framework (NPPF).
The appellant, a local resident, applied for judicial review of the grant of planning permission on grounds that included a failure properly to apply para 74 of the NPPF and failure to consult English Heritage, as a statutory consultee, and the Victorian Society, which had objected to previous proposals for the site. Dismissing the claim, the judge held that, while the first respondents had not carried out a comprehensive assessment under the first bullet point of para 74 into whether the open space to be built on was “surplus to requirements”, their decision was justified under the second bullet point, namely that the loss resulting from the proposed development would be replaced by equivalent or better provision in terms of quantity and quality in a suitable location.
In relation to the consultation ground, she held that there was no duty to consult the Victorian Society and that, while the first respondents had not complied with their statutory duty to consult English Heritage pursuant to regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990, that did not justify quashing the planning permission since the decision on the planning application would have been the same even if consultation had taken place: see [2015] EWHC 1877 (Admin); [2015] PLSCS 205. The appellant appealed.
Held: The appeal was allowed.
(1) The relevant parts of the policy in para 74 of the NPPF were consistent with the local plan policy on open space. Both required an “assessment” to be undertaken to demonstrate that the facility or area to be built on was “surplus to… requirements”. Neither prescribed what form that assessment had to take; that would depend on the circumstances of the case in hand. A decision as to whether a facility was surplus to requirements would call for the exercise of planning judgment, with which the court would interfere only on public law grounds: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PTSR 983; [2012] PLSCS 69 applied. The crucial question for the decision-maker, under both policies, was not how the “assessment” had been undertaken, or in what form it had been presented, but whether it had clearly been shown that the facility was surplus to requirements. The local plan policy also contained a criterion similar to that in the second bullet point of para 74 of the NPPF, so far as it was concerned with an equivalent quantity and quality of alternative or replacement provision. That also was classically a matter of planning judgment. While the two policies were not identical, they were the same in substance, at least in so far as they fell to be applied in the instant case. Accordingly, if the proposal complied with the local plan policy, it was not contrary to para 74 of the NPPF.
The first respondents had been under a statutory obligation, under section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country Planning Act 1990, to consider whether the development proposal complied with the local plan policy as the development plan policy relevant to development on open space. The policy in para 74 of the NPPF was another material consideration. There was nothing in the reports of the first respondents’ planning officer or in the note of the planning committee meeting to suggest any misunderstanding or misapplication of para 74. While the planning officer’s reports had referred to relevant local plan policies rather than to para 74 of the NPPF, the advice in those reports was impeccable as an exercise in applying the policy in para 74 of the NPPF to the facts and circumstances of this case. It could safely be assumed that the advice was accepted by the planning committee.
The three tests in paragraph 74 of the NPPF were disjunctive. The policy could be complied with if only one of them was satisfied. In the instant case, the first respondents had been entitled to accept that the second test was satisfied and the policy in para 74 thus complied with.
(2) The judge had been entitled to hold that the grant of planning permission should not be quashed for the failure of the first respondents to comply with their statutory obligation to consult with English Heritage. It was implicit in the provisions of para 5A of the 1990 Regulations that English Heritage was to be given the opportunity of making its views on the proposed development, if any, known to the local planning authority before the authority’s decision was made. The first respondents had conceded that the requirement in regulation 5A(3) was not met since they had notified English Heritage of the proposal only after determining the application for planning permission. However, in light of the correspondence after the grant of planning permission, in which English Heritage had indicated that it had no comment to make, the judge had been entitled to assume that its position would have the same had it been notified in time under para 5A. While the judge had failed to take into account the significance of English Heritage’s role as a statutory consultee on proposed developments likely to affect heritage assets, she had had been entitled to conclude that its input would not have made a difference to the outcome in the instant case. That was not because English Heritage’s view on the proposal, if it had one, would have made no difference to the first respondents’ decision, but because it did not have a view that could have made a difference.
(3) Nonetheless, the grant of planning permission should be quashed on the ground that the first respondents had been seriously misled as to the position of the Victorian Society. The planning committee had been given the impression that the Victorian Society had been consulted and had made no comment on the application, whereas, in truth, attempts to consult them had been abortive. The committee might have been left with the impression that the Victorian Society was satisfied with the design, when that was not so. Given the first respondents’ duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, the importance of the effect that the development would have on the setting of the listed building, and the fact that the Victorian Society had objected to a previous proposal, that error was enough to vitiate the decision to grant planning permission. While there was no statutory duty to consult the Victorian Society on the proposal, it was recognised as a heritage consultee in certain circumstances and was one of the “National Amenity Societies”, and the first respondents had plainly thought it necessary to obtain its views on the proposed development. In the context of the duty in section 66(1), the planning committee had been misinformed on the consultation of a national amenity society, which had been an objector to a similar proposal, and whose views on the current application the first respondent had chosen to seek and might have made a difference to their decision. The grant of planning permission was therefore unlawful owing to the taking into account of an immaterial consideration. Since it was not possible to say that the Victorian Society’s view would have made no difference to the first respondents’ decision, there was no scope here for withholding relief in the exercise of the court’s discretion.
Jenny Wigley (instructed by Richard Buxton Environmental & Planning Law, of Cambridge) appeared for the appellant; Hugh Flanagan (instructed by Wealden and Rother Shared Legal Services) appeared for the first respondent; Neil Cameron QC (instructed by Shoosmiths LLP, of Fareham) appeared for the second respondent.
Sally Dobson, barrister