Planning permission – World heritage site – Notification – Court rejecting appellant’s application for judicial review of planning permission in respect of land within world heritage site – Appellant appealing – Whether paragraph 18A-036 of National Planning Policy Guidance requiring defendant local planning authority to consult Department of Culture, Media and Sport – Appeal dismissed
The first respondent city council granted planning permission to the second respondent developer to redevelop a site in Lime Street and properties to the rear in Bolton Street, Liverpool, to erect mixed-use development comprising ground floor commercial, retail and leisure uses with hotel above and student accommodation with associated landscaping, servicing and access.
The site lay within the buffer zone of the Liverpool World Heritage Site (WHS) and was designated as a mixed-use area within the Unitary Development Plan. The boundary of the William Brown Street conservation area lay to the north of the site adjoining the public realm to the front of Lime Street Station. Liverpool’s World Heritage Sites’ Outstanding Universal Value (OUV) emphasised the historic importance and significance of the City and Port of Liverpool as examples of maritime culture in the 18th, 19th and 20th centuries. The World Heritage Committee (WHC) of UNESCO had placed Liverpool Maritime Mercantile City on the list of WHS in danger because of the potential threat of the proposed large scale development of Liverpool Waters on the OUV of the property.
The appellant applied for judicial review of the decision to grant permission on the single ground that the first respondent had failed to notify the Department for Culture, Media and Sport of the proposal, and thus also the WHC, in breach of the World Heritage Committee’s Operational Guidelines and the guidance in paragraph 18a-036 of the Planning Practice Guidance (PPG) issued by the government in March 2014. Patterson J dismissed the application: see [2016] EWHC 48 (Admin); [2016] PLSCS 15.
The appellant appealed to the Court of Appeal. The main issue was whether the judge had been wrong to conclude that the first respondent was not required to notify the department of the proposal.
Held: The appeal was dismissed.
(1) The first part of paragraph 18a-036 of the PPG was clearly directed to action being taken at national government level, in accordance with the WHC’s Operational Guidelines, to bring to the attention of the WHC proposals that “may affect” the OUV of the WHS in question, and to do so before decisions that would be difficult to reverse were taken on those proposals. Read in context, the words “may affect the Outstanding Universal Value” meant “may have an adverse impact on the Outstanding Natural Value” – the kind of harm to a World Heritage Site or its setting contemplated in the second part of paragraph 18a-036. Whether a particular proposal “may affect” OUV so as to justify informing the WHC was a matter for the government, with the benefit of the advice of Historic England but that did not imply a requirement for a local authority to consult Historic England and the Department for Culture, Media and Sport on any proposal that the authority considered might affect OUV in some way, whether harmfully or not.
(2) Where the guidance referred specifically to the action that local planning authorities could take, it did so in language best described as encouraging or advisory. By contrast, in the second part of paragraph 18a-036, which reminded local planning authorities of the requirement to consult the secretary of state in the circumstances to which it referred, it was drawing attention to a specific statutory requirement and adopted the same language as the source of that requirement. When an authority consulted Historic England on a proposal that, in their view, might affect the OUV of a WHS, it would have brought the proposal to the notice of the government’s specialist adviser on development within the historic environment, thereby enabling Historic England to form their own judgment on any effect the development might have on OUV, harmful, neutral or beneficial, and to advise the government accordingly, allowing the government to decide whether the WHC should be informed. The authority would thus have substantially complied with the guidance, even if it had not also separately consulted the Department for Culture, Media and Sport.
(4) There could be no complaint that the first respondents had failed to consult Historic England early enough to enable them to participate effectively in the process by which the decision on the proposal was made. In the light of the correspondence before the court, it was clear that, given the way in which the advice on the consultation of Historic England and the Department for Culture, Media and Sport was expressed in the first part of paragraph 18a-036, substantial compliance with that advice had been achieved by the timely consultation of Historic England.
(5) Development in the setting of a heritage asset, in this instance development in the buffer zone of a WHS, would bring about some physical and visual change within the setting. Whether the impact militated against the grant of planning permission was ultimately a question for the decision-maker to determine in the light of relevant policy, including policy in the NPPF. It was significant that, having taken Historic England’s advice, the secretary of state did not call in the application for his own determination, and also that Historic England did not find it necessary to refer the proposal to the Department for Culture, Media and Sport with a view to its informing the World Heritage Committee of the proposal before planning permission for it was granted.
(6) In any event, if the department had been consulted, the outcome would have been the same. The first respondents had complied fully with the relevant statutory requirements for consultation and consulted Historic England in accordance with paragraph 18a-036 of the PPG. Historic England had no objection to the proposal, did not seek a call-in, and did not see any need to alert the department to the proposal before planning permission was granted. There was no evidence before the court to suggest that the department took a different view. On the evidence now before the court, even if the error of law alleged had been established, the court would have been entitled to withhold an order to quash the decision and it would have been right to do so.
Richard Harwood QC (instructed by Harrison Grant) appeared for the appellant; Anthony Crean QC and Constanze Bell (instructed by Liverpool City Council) appeared for the first respondents; Richard Kimblin QC and Thea Osmund-Smith (instructed by Brabners LLP, of Liverpool) appeared for the second respondent.
Eileen O’Grady, barrister