Town and country planning – Planning permission – Heritage and noise impact – Claimant seeking judicial review of decision to grant planning permission for change of use – Whether defendant local authority adopting correct approach to designated heritage assets and assessment of noise – Application granted
The defendant local authority granted full planning permission subject to a section 106 agreement in respect of the Hope and Anchor Public House, 74 Crowndale Road, London NW1 1TP. The defendants’ development control committee had previously resolved to grant permission after considering a planning officer’s report. The permission authorised change of use from public house (class A4) to alternative uses as either retail or estate agent’s offices (class A1/A2) at part ground, part basement levels and residential (class C3) to provide eight flats, enlargement of existing basement with side lightwell, replacement of single storey rear/side addition with three storey rear/side extension and mansard roof with terrace and associated alterations to windows and doors. The application site immediately abutted and shared a party wall with the claimant’s premises from which it operated a nightclub, live music and performance space (trading as KOKO) at 1A Camden High Street, a landmark Grade II listed building of national importance and special interest.
The claimant applied for judicial review of the decision to grant planning permission on the grounds that: (i) the defendants’ had failed to assess the heritage impact of the proposed development as the application for permission had not been accompanied by a heritage statement assessing and justifying the proposal by reference to the national planning policy framework (NPPF), as required by the Camden Local Area Requirements for Planning Applications (CLARPA); (ii) there had been a flawed assessment of noise impact as the application was not accompanied by a noise and vibration impact assessment, as required by CLARPA for noise sensitive development; (iii) there had been a failure to report the application back to the committee to amend planning conditions; (iv) the defendants had adopted an irrational and unlawful approach to planning conditions; and (v) there had been a breach of the procedural requirement in section 327A of the Town and Country Planning Act 1990.
Held: The application was granted.
It was clear from the officer’s report that the defendants had complied with section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, in that special attention had been paid to the desirability of preserving or enhancing the character or appearance of the area. However, section 66 required the local planning authority to have special regard and give considerable importance and weight to the desirability of preserving the building or its setting. Nothing approaching that had been brought to the attention of committee members in the officer’s report, thereby not drawing to defendants’ attention to the proper approach required by law and a material consideration. Committee members could not be expected to acquire a working knowledge of the statutory test in the context of section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 which had not been referred to at all by officers. It was not sufficient in those circumstances to say that these were experienced officers in an area which has a large number of listed buildings: Oxton Farms etc v Selby District Council [1997] EG 60, R (on the application of Maxwell) v Wiltshire Council [2011] EWHC 1840 (Admin); [2011] PLSCS 187 and R (on the application of Forge Field Society v Sevenoaks District Council [2014] EWHC 1896 (Admin); [2014] PLSCS 182 considered; Barnwell Manor Wind Energy Ltd v Northamptonshire District Council [2014] EWCA Civ 137; [2014] 1 EGLR 23 distinguished.
Furthermore, paragraph 128 of the NPPF and CLARPA both required the applicant to describe the significance of any heritage assets affected including any contribution made by their setting and members had not been told that paragraph 128 of the NPPF required the applicant to describe the significance of heritage assets affected. The reality was that those were material considerations which had not been considered and the decision was flawed.
(2) As regards the alleged flawed assessment of noise impact, the committee members had clearly expressed concerns about noise. The tenor of the officer’s report was that, so long as the noise consultant’s mitigation measures were implemented, requiring further details of those particular mitigation measures, the proposed residential use would not result in increased noise and complaints which might result in harm to the future operation of the neighbouring businesses. That was not accurate and the overall effect of the report in relation to noise significantly misled the committee about material matters which were left uncorrected at the meeting before the relevant decision was taken.
(3) There was nothing in the resolution or any other document which permitted officers to reword the conditions which were specifically added and to which the resolution was expressly made subject. The language of the resolution did not leave the conditions at large. If officers wished to remove or amend those conditions they were under a duty to return to committee to have that done. Officers had no power to redraft the conditions given the express terms of the resolution and, in any event, the conditions as approved were regarded by the Environmental Health officers as wholly inadequate and the application should have been referred back to committee: R (on the application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370; [2002] 4 PLR 66 considered; R (on the application of Couves) v Gravesham Borough Council [2015] EWHC 504 (Admin); [2015] PLSCS 85 distinguished.
(4) The report of the claimant’s noise consultant in effect said that the planning conditions could not possibly fulfil the aims they sought to achieve. There was no evidence from the defendants. There was nothing apart from the fact that the conditions were drafted by the defendants’ officers, to refute any of the points made by the claimant’s expert. A brief witness statement setting out in summary form why issue was taken with his conclusions might well have been sufficient but the court was in effect left with a detailed and systematic witness statement alleging irrationality and nothing of real substance to begin to counteract it.
(5) Section 327A of the Town and Country Planning Act 1990 required a local planning authority not to entertain an application if it failed to comply with a requirement as to the form or manner in which an application or accompanying document had to be made. Pursuant to section 62(3) of the Act a local planning authority might require an application for planning permission to include such evidence in support of anything in or relating to the application as they thought necessary. The court accepted the defendants’ submission that CLARPA was a requirement which the local planning authority was empowered to make under section 62(3). Sections 62(1) and 62(2) affected the natural construction of section 62(3) was that CLARPA was a provision made under the Act requiring a heritage assessment and a noise assessment. The word “provision” was specifically used as a term of art in those subsections and it was important to note that section 327A(1)(a) and (b) essentially mirrored section 62(2)(a)–(c). Paragraph 10 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010/2184) required a local planning authority to send an acknowledgement of a planning application once certain matters had been done, including any particulars required under section 62(3). However, there was no stipulation that an authority might not send an acknowledgement if some of the requirements had not been complied with.
Tom Cosgrove (instructed by Berwin Leighton Paisner LLP) appeared for the claimant; Giles Atkinson (instructed by Solicitor for Camden London Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read transcript: Obar Camden v Camden Council
