Town and country planning – Planning permission – Heritage impact assessment – Claimant applying for judicial review of decision of defendant local planning authority to grant permission for residential development – Whether defendant failing to have regard to duty under section 66(1) of Planning (Listed Buildings and Conservation Areas) Act 1990 – Whether planning officer wrongly failing to explain why advice in heritage impact assessment rejected – Application dismissed
The defendant local planning authority granted outline permission to the interested parties for the development of a portion of land allocated for up to 400 dwellings within the local plan. The site, formerly agricultural land, lay to the north east of Pagham, a large and expanding village on the coast of West Sussex. In his report, the planning officer had referred to a number of listed buildings situated within close proximity to the site, including the medieval Grade 1 listed Thomas à Becket church, which lay to the south west of the site. He considered the impact that the proposed development would have on each of those buildings and/or their settings and summarised the views of Historic England, the statutory consultee, (who had not objected), and correctly informed the committee that the defendant’s conservation officer had raised no objection.
The claimant parish council objected to the proposed development and its objections were taken into consideration in the planning officer’s report. It accepted that the decision to grant planning permission was one which a reasonable local planning authority, properly directing itself, would be entitled to reach. However, it applied for judicial review of the decision on the grounds that the defendant’s development control committee had failed to have regard to the duty, under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, to give special regard to the desirability of preserving heritage assets or their setting. In reliance on the judgment in R (on the application of NHS Property Service Ltd) v Surrey County Council [2016] EWHC 1715 (Admin), the claimant argued that the planning officer ought to have explained why he had rejected the advice of the heritage impact assessment (HIA) that there was a harmful impact on the setting, albeit a slight one.
Held: The application was dismissed.
(1) It was not for the local planning authority to establish that it complied with its duty under section 66(1); it was for the challenger to demonstrate that at the very least there was substantial doubt that it had. The question whether to grant or refuse planning permission involved the significant exercise of planning judgment by a specialist committee whose members could be expected to have substantial local knowledge and an understanding of planning principles and policies. The function of the planning officer’s report was to inform the committee of considerations relevant to the application, including considerations which the local authority was mandated by legislation to take into account. Subject to such mandatory considerations, the question of what (and how much) information went into the report was a matter for the planning officer to decide, and that decision was only susceptible to challenge if it was irrational: Jones v Mordue [2015] EWCA Civ 1243, [2016] 1 WLR 2682 and R (on the application of Palmer) v Herefordshire County Council [2016] EWCA Civ 1061; [2016] PLSCS 296 considered.
(2) In the absence of evidence to the contrary, it might reasonably be assumed that in adopting the planning officer’s recommendation, the members of the committee followed the advice that he gave them, including as to their legal duties. It might also be reasonably inferred that members of the committee followed the reasoning of the report. It was well settled that applications for judicial review based on criticisms of an officer’s report did not normally begin to merit consideration unless on a fair reading of the report, its overall effect was to significantly mislead the committee about material matters which were then left uncorrected. Minor or inconsequential errors might be excused. That was different from arguing that the planning officer was under a duty to give further or better reasons for his recommendation. The court should be astute to avoid imposing too demanding a standard on such reports, for otherwise their whole purpose would be defeated: Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2017] PLSCS 174 followed. R (on the application of Morge) v Hampshire County Council [2011] UKSC 2; [2011] PLSCS 14; [2011] 1 WLR 268, R (Zurich Assurance Ltd t/a Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin) and Dover District Council v CPRE (Kent) [2017] UKSC 79; [2018] EGLR 1 considered.
(3) The purpose of the heritage impact assessment (HIA) was to inform the local planning authority of the significance of any proximate listed buildings, the contribution that the setting made to that significance, and of any impact that the development would or might have on each building or its setting. That information would assist the local authority in deciding whether there was or might be an impact on the listed building or its setting; whether that impact was harmful, in the sense that it failed to preserve the special qualities of the building or its setting; and, if it was, how substantial the harm was or might be. The circumstances in which the section 66(1) duty had to be performed where the setting of a listed building was concerned would vary considerably, and with a number of factors, including but not limited to the nature, scale and siting of the proposed development, its proximity and likely visual relationship to the listed building, the architectural and historical characteristics of the listed building itself, local topography, and the presence of other features, both natural and man-made, in the surrounding landscape. A local planning authority and its planning officer were not obliged to accept the opinions of an applicant’s consultant even on matters falling within his expertise, save in the rare circumstances in which it would be irrational not to accept them. The planning officer was in just as good a position as a consultant on listed buildings to form a view about whether the slight impact on a long-distance view of the church tower, from the angle and positions to the north-east described in the HIA, failed to preserve the special qualities of the setting of the church. Ultimately that was a matter of planning judgment, not a matter of expert opinion: R (on the application of NHS Property Service Ltd) v Surrey County Council distinguished.
Ashley Bowes (instructed by Barlow Robbins LLP, of Woking) appeared for the claimants; Jeremy Cook (instructed by Arun District Council) appeared for the defendant; John Litton QC (instructed by James Smith (Planning Law Services) Ltd) appeared for the interested parties.
Eileen O’Grady, barrister
Click here to read a transcript of Pagham Parish Council v Arun District Council
