Town and country planning – Planning permission – Green wedge – Appellant local planning authority granting planning permission for development of open park land – Respondent applying for judicial review – Judge granting application – Appellant appealing – Whether appellant failing to apply statutory presumption against harmful development – Whether appellant misinterpreting or irrationally applying unitary development plan – Appeal allowed in part
The appellant local planning authority granted planning permission in respect of an area of open land at Calderstones Park, Liverpool for the relocation of a miniature railway with associated buildings and parking; and the building of 39 new dwellings and conversion of two grade II listed buildings into 12 apartments. The park was a stretch of open ground with grassed areas, plants and trees. The site was part of the “green wedge” land as defined in the appellant’s unitary development plan (UDP). Permission had been granted to relocate a miniature railway which currently occupied the site.
The respondent community interest company applied for judicial review of that decision. The first interested party was the developer of the proposed housing. The second interested party was a representative of the body that ran the miniature railway to be relocated but took no part in the proceedings.
The respondent’s challenge succeeded on the grounds that: (i) in granting each of the two planning permissions, the appellant had misinterpreted and misapplied policy OE3 of the UDP for development proposed within a green wedge; and (ii) in granting planning permission for the proposed development, it had failed to comply with the duty in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.
Both the appellant and the first interested party were granted permission to appeal. The first interested party then lodged a notice of discontinuance, effectively withdrawing its appeal. However, the appellant maintained its own appeal and sought to have it determined. In those circumstances, the respondent said that the appellant’s appeal was academic and should not be entertained.
Held: The appeal was allowed in part.
(1) Principles concerning national policy for the green belt had some bearing on the present issue even though it concerned local policy for a green wedge, whose precise drafting might not be replicated elsewhere. Three requirements had to be satisfied before an appeal, which was academic between the parties, might be allowed to proceed: (i) the court was satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agreed to it proceeding, or was at least completely indemnified on costs and was not otherwise inappropriately prejudiced; and (iii) the court was satisfied that both sides of the argument would be fully and properly ventilated. The rule was not inflexible but the court had a narrow discretion to proceed, to be exercised with caution, even when a point of public law of some general importance was involved. In the present case, the second and third requirements were both, or could be, satisfied. As for the first requirement, the policy OE3 issue was a question of policy interpretation, of some general importance, whose determination by the Court of Appeal was likely to be of benefit elsewhere. That was enough to support the conclusion that the appeal was not wholly academic and ought to be heard in the public interest: Hutcheson v Popdog Ltd [2012] 1 WLR 782, Hamnett v Essex County Council [2017] 1 WLR 1155 and Hook v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 486; [2020] PLSCS 58 followed.
(2) When the appellant was considering whether a development would “affect the predominantly open character” of a green wedge, the planning judgment required by policy OE3 was not limited to a consideration of its physical or spatial effects alone, excluding visual impact. Whether it would “affect the predominantly open character” was not an automatic result of its physical presence in the green wedge or of the fact that it would be visible. What was required was a realistic assessment of the impact that the development on this site, and in its own surroundings, would have on the “the predominantly open character” of the green wedge. Whether that impact was acceptable or not was for the appellant to judge, as decision-maker. On a fair reading of the planning officer’s reports, there was no basis for contending that the appellant failed to interpret policy OE3 correctly when making its decisions on the two proposals. The officer’s assessment of the proposal against the provisions of policy OE3 was based on a correct interpretation of that policy, and the policy was lawfully applied in a sequence of rational and clearly reasoned conclusions. This was not a case where a local planning authority had misunderstood a policy in its own development plan: R (on the application of Corbett) v Cornwall Council [2020] EWCA Civ 508; [2020] PLSCS 64 and R (Sam Smith’s Old Brewery (Tadcaster)) v North Yorkshire County Council [2018] EWCA Civ 489; [2018] PLSCS 54 followed.
(3) Strong conservation objections to three dwellings proposed within the setting of an historic house raised by the Urban Design and Heritage Conservation team were provided in response to the formal consultation of a team of professional officers employed by the appellant for their expertise in the conservation of heritage assets, including listed buildings and their settings. The planning officer’s failure to bring those objections to the attention of the planning committee was a significant omission. The purpose of the consultation was to draw upon that expertise so that it could assist the appellant in discharging its duty under section 66(1) of the 1990 Act (to have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possessed) when making its decision on the application for planning permission. The judge was right to conclude that that was enough to displace the presumption that the section 66(1) duty had been properly performed. On that ground, the judge was right to uphold the challenge to the planning permission. Accordingly, the appeal would be allowed in respect of the judge’s order quashing the planning permission for the relocation of the miniature railway. Otherwise the order quashing the permission for the proposed development would not be disturbed.
Paul Tucker QC and Constanze Bell (instructed by Liverpool City Council) appeared for the appellant; Ned Westaway and Charles Streeten (instructed by E Rex Makin & Co, of Liverpool) appeared for the respondent; The interested parties did not appear and were not represented.
Eileen O’Grady is a barrister
