In R (Leckhampton Green Land Action Group Ltd) v Tewkesbury Borough Council [2017] EWHC 198 (Admin) Holgate J rejected all grounds of claim in respect of the grant of planning permission for 377 new homes.
The site (bordered by AONB and Green Belt) was one of several allocated for housing development in an outdated local plan (and part of an urban extension in the emerging joint local plan). The authority could not demonstrate a five-year supply of housing land and so housing policies were accepted to be “out of date” for NPPF49 purposes. Impacts on the settings of listed buildings were considered as “minor detrimental”, engaging the “strong legal presumption” against the grant of permission (R (Forge Field Society) v Sevenoaks District Council [2014] EWHC 1895 (Admin); [2014] PLSCS 182).
In parallel, the joint local plan inspector gave a preliminary indication that she was not minded to find the part of the urban extension allocation lying within the authority’s area (including the site) “sound” due to landscape impacts. Objectors asked for the application to be referred back to the committee. The authority instead granted permission, on the basis that the NPPF14 presumption was engaged.
The judge rejected the claim by objectors, on the following grounds:
• The officer’s report did not suggest a simple balancing exercise which merely treated the “less than substantial [heritage] harm” as a “less than substantial planning objection” to the proposal (per East Northamptonshire District Council v SSCLG [2014] 2 EGLR 85). There was no positive indication the test was misapplied or ignored (Mordue v SSCLG [2015] EWCA Civ 1243; [2015] PLSCS 346). The NPPF14 presumption had been properly considered separately from the NPPF134 balancing exercise, with landscape effects weighed in the balance. Where the balance of benefits meant the NPPF134 test was passed (having applied a “negative tilt” to heritage harm), the applicant was entitled to the positively “titled balance” in first part of NPPF14.
• The local plan inspector’s “preliminary findings” were narrow, liable to change and made for strategic planning without the detailed material relevant to the determination of the planning application. It was “wholly unrealistic” to think they could “possibly have tipped the balance already struck by the Committee” (R (Kides) v South Cambridgeshire District Council [2002] 4 PLR 66 applied).
• The scheme could not sensibly be regarded as an integral part of a wider strategic allocation “project” that required more than a normal cumulative assessment. Officers could judge what EIA material should be drawn to members’ attention (Morge v Hampshire CC [2011] PLSCS 14 applied). They did not have to read the whole ES or have it all reproduced to them.
Roy Pinnock is a partner in the planning and public law team at Dentons