Town and country planning – Planning permission – Unitary development plan – Defendant local planning authority granting planning permissions for development of open park land – Claimant applying for judicial review – Whether defendant failing to apply statutory presumption against harmful development – Whether defendant misinterpreting or irrationally applying unitary development plan – Application granted
The defendant local planning authority granted planning permissions in respect of an area of open land at Calderstones Park, Liverpool for: (i) the relocation and laying out of a miniature railway with associated buildings and parking; and (ii) the building of 39 new dwellings and conversion of a historic house and grounds 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 defendant’s unitary development plan (UDP).
The claimant 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 who took no part in the case.
The claimant contended, amongst other things, that: (i) the defendant had failed to apply the statutory presumption against harmful development in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 or to apply policy HD5 of the Liverpool Unitary Development Plan (UDP) and failed to explain how it applied the presumption and policy. The officer’s report also failed to inform the planning committee about the objection of the defendant’s own urban design and heritage conservation team; and (ii) the defendant misinterpreted or irrationally applied the green wedge policy OE3 of the UDP or failed to give adequate reasons for its conclusion in relation to compliance with that policy.
The defendant and the first interested party resisted the claims and argued that the two planning permissions were lawfully granted. However, even if that was wrong, the court should refuse the remedy sought because, under section 31(2A) of the Senior Courts Act 1981, it was highly likely that if there was any error of law, the outcome would not have been substantially different had the conduct complained of not occurred.
Held: The application was granted.
(1) In considering whether to grant planning permission for development which affected a listed building or its setting, the local planning authority had 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: section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. The officer’s report included mention of section 66(1) and paraphrased, with reasonable accuracy, the effect of the corresponding paragraphs in the National Planning Policy Framework (NPPF), including the proposition that great weight was given to the designated asset’s conservation. Therefore, the inference was that the committee was properly appraised of and carried out its section 66(1) duty, unless contra-indications rebutting the inference raised at least a substantial doubt that they did so. In the present case, the claimant had demonstrated the existence of such contra-indications, including the omission to mention or credit the conservation team response (CTR) produced by the conservation team. The defendant was wrong to dismiss the significance of that omission which created a false and misleading impression that the defendant as an organisation had no objection to the proposals from a heritage perspective. That had the effect of downplaying the weight to be given to harm to the heritage assets or their setting. The overall conclusion in the report did nothing to restore the balance in a finely balanced application where any identified harm had to be carefully weighed against the wider benefits of the proposal. In the light of all the evidence, the defendant had failed to discharge its duty under section 66.
(2) There was a clear conflict between the proposed development and the green wedge policy in OE3 which promised to protect and improve the open character, landscape, recreational and ecological quality of the green wedges by not granting planning permission for proposals for new development that would affect the predominantly open character of the green wedges. Development that harmed the openness of the green wedge conflicted with the policy. The court accepted the claimant’s analogy with the case law on green belt even though the two policy designations were distinct. Green belt land and green wedge land differed in some respects but, because both were verdant, they shared the quality of openness or open character. Even though openness was a term of art in planning law, open character was not qualitatively different from openness. Land which was open had an open character and also the quality of openness. Undermining the open character of land undermined its openness. What green belt and green wedges had in common was their greenness, safeguarded by protection against inappropriate development, though not in precisely the same way. Accordingly, the defendant had misconstrued the green wedge policy in the unitary development plan: Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2489 (Admin); R (Heath and Hampstead Society) v Camden London Borough Council [2007] EWHC 977 (Admin); [2007] 2 P&CR 19, R (Lensbury Ltd) v Richmond-upon-Thames London Borough Council [2016] EWCA Civ 814; [2016] PLSCS 230, R (Lea Valley Regional Park Authority) v Epping Forest District Council [2016] EWCA Civ 404 and R (Sam Smith’s Old Brewery (Tadcaster)) v North Yorkshire County Council [2018] EWCA Civ 489; [2018] PLSCS 54 considered.
(3) There were no grounds for withholding relief under section 31(2A) of the Senior Courts Act 1981 because it was not “highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred” where the conduct complained of was misinterpreting policy OE3 and carrying out a flawed, unweighted balancing exercise with respect to the impact of the development on the heritage assets and their setting.
Ned Westaway and Charles Streeten (instructed by E Rex Makin & Co, of Liverpool) appeared for the claimant; Paul Tucker QC and Constanze Bell (instructed by Liverpool City Council) appeared for the defendant; David Manley QC and Anthony Gill (instructed by Redrow Homes Ltd) appeared for the first interested party; the second interested party did not appear and was not represented.
Eileen O’Grady, barrister
