In Irving v Mid Sussex District Council and another [2016] EWHC 1529 (Admin) Gilbert J quashed the planning permission granted by a planning authority on its own land for a single dwelling on a former allotment and play area outside the built up boundary, within a conservation area and an area identified in the Neighbourhood Plan as forming a key part of the visual relationship between the village and the Area of Outstanding Natural Beauty and beyond.
The permission was challenged by judicial review on the basis that it had misapplied NPPF and development plan policies on heritage assets, misapplied the NPPF14 presumption in favour of sustainable development and failed to apply the legal duty under section 72 Planning Listed Buildings Conservation Areas Act 1990. The committee report treated all countryside policies as out of date for NPPF purposes and advised members that there were no specific policies in the NPPF indicating that development should be restricted (so as to disengage the presumption in favour of sustainable development). It concluded that whilst there would be some impact on the character and appearance of the conservation area, the “overall character and appearance of the conservation area” would be preserved. It then applied the NPPF14 balance on the basis that the adverse impacts would not significantly and demonstrably outweigh the benefits of the single new dwelling. It also relied on the grant of new homes bonus as a material consideration (which went unchallenged).
In quashing the permission, the judge held that harm to the appearance of part only of the conservation area nonetheless engaged the duty under section 72 and the restrictive policies under NPPF 134 (and meant that relevant policies in the development plan were therefore breached), contrary to the advice given in the committee report. The judgment appears to accept that the NPPF presumption cannot be applied where there is any harm to designated heritage assets, regardless of the balancing considerations (following Forest of Dean District Council v Secretary of State for Communities and Local Government and another [2016] EWHC 421). While the extent to which policies were out of date was a matter of planning judgement for the authority, it had erred in failing to treat key heritage policies as having been breached and had failed to apply section 38(6) Planning Compulsory Purchase Act 2004.
Permission has been granted to appeal on the question of whether when considering harm to the character and appearance of a conservation area it is permissible to confine the assessment to harm overall.
Roy Pinnock is a partner in the planning and public law team at Dentons