R (on the application of Garner and others) v Elmbridge Borough Council

Planning permission – Comprehensive redevelopment of site – Effect on setting of Hampton Court Palace as Grade I listed building and on nearby Grade II listed bridge – Section 66(1) of Planning (Listed Buildings and Conservation Areas) Act 1990 – Whether defendant local planning authority complying with statutory duty to have special regard to preserving setting of listed buildings – Whether erring in approach to development on flood plain – Claim dismissedIn June 2009, the defendant local authority granted planning permission for the redevelopment of Hampton Court station and adjoining land. The scheme included residential units, retail and commercial floorspace, a hotel and a care home. The application site lay on the opposite bank of the River Thames from Hampton Court Palace, which was a scheduled ancient monument and a Grade I listed building. A Grade II listed bridge passed to the west of the site. The first claimant had previously worked for Historic Royal Palaces (HRP) as an architect specialising in the conservation of historic buildings. During that time, he had been responsible for looking after the palace and had advised HRP on objections to earlier planning applications relating to the application site.In granting planning permission, the defendants noted that the proposal was based on a planning brief that English Heritage had deemed to be satisfactory. It had also met the technical requirements of specialist consultees, including the Environment Agency and the local highways authority, and would deliver the redevelopment and regeneration of wasted space. They concluded that there were insufficient overriding reasons to refuse planning permission.The claimants applied for judicial review of the planning permission. The first claimant applied for a protective costs order, which was initially refused but was then granted on appeal: see [2010] EWCA Civ 1006; [2010] PLSCS 247. The claimants contended that, inter alia, the defendants had: (i) failed to have special regard to the desirability of preserving the setting of the palace and the bridge, as required by section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990; and (ii) not properly applied the sequential tests for development in a flood plain as set out in PPS 25. A rolled-up hearing was conducted to determine the issue of permission and the substantive claim.Held: Permission was granted in part but the claim was dismissed.(1) A local planning authority (LPA), having special regard to the desirability of preserving the setting of a listed building, would generally require strong reasons before granting planning permission for a development that harmed that setting. Section 66 of the 1990 Act did not allow an LPA to treat the desirability of preserving the setting of a listed building as a mere material consideration, to which they could attach what weight they saw fit. The statutory language went beyond that and treated the preservation of the setting of a listed building as presumptively desirable. There was a presumption against permission and strong countervailing reasons would be required for it to be granted. If a development would harm the setting, its merits needed to outweigh that harm: South Lakeland District Council v Secretary of State for the Environment [1992] 1 PLR 143 applied.Although the defendants had not specifically referred to the section 66 duty, that did not render their decision erroneous since they had approached the issue correctly and had had special regard to the desirability of preserving the setting of the palace and the bridge. The history of the application included the planning brief, the consideration of various reports from HRP, the form and detail of the planning application and accompanying documents, a site visit by council members to the palace, with HRP officers present, and the planning officer’s report. That sequence of events indicated that the desirability of preserving the setting of the palace and the bridge had been one of the key issues in the decision and that special regard had been paid to it. It had not been treated as merely one among many material considerations. The officer’s report made it clear that the setting was one of the most important issues, but it did not suggest that the setting would be harmed or that, if there was harm, it was unimportant. The probable inference was that those who voted in favour of granting planning permission did so in the belief that the development would preserve the setting of the palace and bridge or that countervailing factors would outweigh the harm. There was no particular restriction on the factors that could lawfully outweigh such harm. The defendants had fulfilled their section 66 duty. Accordingly, although the claimants had been allowed to bring their first ground of claim, that ground was dismissed.(2) The sequential test in PPS 25 did not apply to a mixed-use development that had to be located on a particular site to achieve the regeneration of that site. The defendants had been concerned with the regeneration of a particular site, such that finding other sites for the component parts of the development would have been pointless. The defendants had been entitled to proceed swiftly to the “exception test” under PPS 25, which permitted development where, inter alia, it could be shown that the development would be safe and would provide wider sustainability benefits to the community that outweighed the flood risk. They had been entitled to conclude that that test was met. Accordingly, the claimant’s second point was not arguable and permission had been refused on that ground.Richard Drabble QC and David Smith (instructed by Richard Buxton Environmental Public Law, of Cambridge) appeared for the claimants; Simon Bird QC (instructed by the legal department of Elmbridge Borough Council and Sharpe Pritchard) appeared for the defendants; Mary Cook (instructed by SNR Denton UK LLP) appeared for the first interested party; Gregory Jones (instructed by Clifford Chance LLP) appeared for the second interested party.Sally Dobson, barrister