Gibson v Waverley Borough Council
Planning permission – Listed building – Planning permission and listed building consent granted for development of Grade II listed house formerly occupied by Sir Arthur Conan Doyle – Development involving division of property into terrace of three houses and construction of further accommodation – Whether defendant local planning authority obliged to take into account alternative application for reconversion to single house as material planning consideration – Whether obliged to reconsider decision on interested party’s application in light of grant of planning permission on alternative application – Claim allowed
In 2010, the interested party applied to the defendant council for planning permission and listed building consent for development to a Grade II listed house in Haslemere, Surrey. The house, Undershaw, had been built in 1890 as the private residence of Sir Arthur Conan Doyle and the author had lived there for more than 10 years. The house had been listed because of its literary associations and was said to be unexceptional architecturally. It had in the past been converted to a hotel, with considerable modifications being made for that purpose and the addition of a new wing. The interested party had purchased it in 2004 with a view to redevelopment. It had stood vacant since 2005 and had been allowed to deteriorate.
The interested party’s scheme involved dividing the property into a terrace of three houses, with the installation of new doors, windows and staircases, erecting a new three-storey east wing to provide five townhouses and converting the stable block into garages. A large number of objections to the proposals were submitted, including one from the claimant, who was an author and editor of books on Sir Arthur Conan Doyle and the director of the Undershaw Preservation Trust. In addition, an estate agent indicated that one of its clients was interested in purchasing the property for reconversion to a single home and a planning application for that work was submitted to the defendants.
In June 2010, the defendants’ planning committee voted, on the advice of a planning officer, to approve the interested party’s applications and grant the relevant consents. The officer pointed out the existence of the other, single-house planning application but advised that each application had to be considered on its individual merits. The defendants’ formal decision notice was not issued until September 2010. Meanwhile, in August 2010 the defendants also granted planning permission on the single-house application.
The claimant brought a claim for judicial review of the defendants’ decision to allow the interested party’s applications. His main ground of challenge was that the single-house application and the planning permission granted on it were material planning considerations, in the light of which the interested party’s application should have been referred back to the planning committee before they finally issued their decision notice.
Held: The claim was allowed.
The well-established principle that land could be developed in any way that was acceptable for planning purposes, and that the existence of another, more acceptable scheme did not of itself provide a legitimate reason for refusing permission, could not be applied full blown in the context of heritage assets: Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1986) 53 P&CR 293; [1986] 2 EGLR 185; [1986] 279 EG 680 distinguished. There was a statutory obligation to pay special regard to the preservation of heritage assets: see PPS 5. The relevant policies in PPS 5 referred to a presumption in favour of conservation and required the public benefit of a proposal in securing the optimum viable use of a heritage asset to be weighed against any significantly harmful impact. Viability was measured not just in terms of viability for the owner but also for the conservation of the asset. In the event that there were alternative schemes, each of which would secure a viable use, then the optimum viable use would be the one that had the least harmful impact on the significance of the asset, even though that use might not be the most profitable. An alternative that would secure the optimum viable use not only had to be taken into account in determining an application but also provided a compelling basis for refusing permission for the non-optimum viable proposal.
The optimum use for Undershaw was as a single dwelling-house. It followed that the single-house application fell to be treated as a highly material planning consideration when deciding the interested party’s applications, notwithstanding that it had only appeared on the horizon at the last minute. The single-house use was the optimum viable use, given the existence of the existence of planning permission for that use. The interested party’s proposals would have prevented that use through rendering impossible the implementation of any planning permission for Undershaw’s restoration to a single dwelling-house.
Although the defendants’ planning officer had drawn the planning committee’s attention to the single-house application, she had advised them that they had to consider the alternative uses on their individual merits and whether the interested party’s applications were acceptable. That did not go far enough in identifying a proposal for Undershaw that was for the optimum viable use. Since the committee had acted on the officer’s advice, they had erred in law. The grant of planning permission on the single-house application was a new material consideration, especially since it ran with the land. The planning officer should have referred the interested party’s scheme back to the committee for reconsideration in the light of it: R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370; [2002] 4 PLR 66 applied. The defendants’ decisions to grant planning permission and listed building consent had to be quashed in the light of the legal flaws in those decisions.
Paul Stinchcombe QC and Ned Helme (instructed by Irwin Mitchell) appeared for the claimant; Tim Mould QC (instructed by the legal department of Waverley Borough Council) appeared for the defendants.
Sally Dobson, barrister
Planning permission – Listed building – Planning permission and listed building consent granted for development of Grade II listed house formerly occupied by Sir Arthur Conan Doyle – Development involving division of property into terrace of three houses and construction of further accommodation – Whether defendant local planning authority obliged to take into account alternative application for reconversion to single house as material planning consideration – Whether obliged to reconsider decision on interested party’s application in light of grant of planning permission on alternative application – Claim allowedIn 2010, the interested party applied to the defendant council for planning permission and listed building consent for development to a Grade II listed house in Haslemere, Surrey. The house, Undershaw, had been built in 1890 as the private residence of Sir Arthur Conan Doyle and the author had lived there for more than 10 years. The house had been listed because of its literary associations and was said to be unexceptional architecturally. It had in the past been converted to a hotel, with considerable modifications being made for that purpose and the addition of a new wing. The interested party had purchased it in 2004 with a view to redevelopment. It had stood vacant since 2005 and had been allowed to deteriorate.The interested party’s scheme involved dividing the property into a terrace of three houses, with the installation of new doors, windows and staircases, erecting a new three-storey east wing to provide five townhouses and converting the stable block into garages. A large number of objections to the proposals were submitted, including one from the claimant, who was an author and editor of books on Sir Arthur Conan Doyle and the director of the Undershaw Preservation Trust. In addition, an estate agent indicated that one of its clients was interested in purchasing the property for reconversion to a single home and a planning application for that work was submitted to the defendants.In June 2010, the defendants’ planning committee voted, on the advice of a planning officer, to approve the interested party’s applications and grant the relevant consents. The officer pointed out the existence of the other, single-house planning application but advised that each application had to be considered on its individual merits. The defendants’ formal decision notice was not issued until September 2010. Meanwhile, in August 2010 the defendants also granted planning permission on the single-house application.The claimant brought a claim for judicial review of the defendants’ decision to allow the interested party’s applications. His main ground of challenge was that the single-house application and the planning permission granted on it were material planning considerations, in the light of which the interested party’s application should have been referred back to the planning committee before they finally issued their decision notice.Held: The claim was allowed.The well-established principle that land could be developed in any way that was acceptable for planning purposes, and that the existence of another, more acceptable scheme did not of itself provide a legitimate reason for refusing permission, could not be applied full blown in the context of heritage assets: Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1986) 53 P&CR 293; [1986] 2 EGLR 185; [1986] 279 EG 680 distinguished. There was a statutory obligation to pay special regard to the preservation of heritage assets: see PPS 5. The relevant policies in PPS 5 referred to a presumption in favour of conservation and required the public benefit of a proposal in securing the optimum viable use of a heritage asset to be weighed against any significantly harmful impact. Viability was measured not just in terms of viability for the owner but also for the conservation of the asset. In the event that there were alternative schemes, each of which would secure a viable use, then the optimum viable use would be the one that had the least harmful impact on the significance of the asset, even though that use might not be the most profitable. An alternative that would secure the optimum viable use not only had to be taken into account in determining an application but also provided a compelling basis for refusing permission for the non-optimum viable proposal.The optimum use for Undershaw was as a single dwelling-house. It followed that the single-house application fell to be treated as a highly material planning consideration when deciding the interested party’s applications, notwithstanding that it had only appeared on the horizon at the last minute. The single-house use was the optimum viable use, given the existence of the existence of planning permission for that use. The interested party’s proposals would have prevented that use through rendering impossible the implementation of any planning permission for Undershaw’s restoration to a single dwelling-house.Although the defendants’ planning officer had drawn the planning committee’s attention to the single-house application, she had advised them that they had to consider the alternative uses on their individual merits and whether the interested party’s applications were acceptable. That did not go far enough in identifying a proposal for Undershaw that was for the optimum viable use. Since the committee had acted on the officer’s advice, they had erred in law. The grant of planning permission on the single-house application was a new material consideration, especially since it ran with the land. The planning officer should have referred the interested party’s scheme back to the committee for reconsideration in the light of it: R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370; [2002] 4 PLR 66 applied. The defendants’ decisions to grant planning permission and listed building consent had to be quashed in the light of the legal flaws in those decisions.Paul Stinchcombe QC and Ned Helme (instructed by Irwin Mitchell) appeared for the claimant; Tim Mould QC (instructed by the legal department of Waverley Borough Council) appeared for the defendants. Sally Dobson, barrister
