Town and country planning – Planning permission – Historic buildings – Claimant applying for judicial review of decision of defendant local authority to grant conditional planning permission for mixed use development in conservation area – Whether defendant unlawfully failing to produce statement containing main reasons for decision – Whether planning officers’ conclusion that use of site for railway purposes of greater importance than preservation of non-listed buildings irrational – Application dismissed
The interested party applied for outline planning permission for the development of a site in the Wolverton Conservation Area. The development involved the demolition of existing structures and the creation of a new employment floorspace, up to 375 residential units, a food store, a community facility, new hard and soft landscaping, open space and public realm and amended site vehicular access. The site was historically significant because of its critical role in the development of the world’s earliest railway and included a concentration of industrial and public structures of special architectural and historic interest.
The claimant objected to the application on the basis of its impact upon the historic built environment. The defendant local authority commissioned independent consultants to undertake a heritage assessment of the site which examined the historical evolution of the site and focused on the significance of the buildings remaining on the site. It was noted that none of the remaining buildings were listed but that some of the buildings made a positive contribution to the character or appearance of the conservation area. The claimant considered that the extensive demolition involved in the proposals would entail substantial harm to the significance of the conservation area which was not justified and the proposal should be refused.
A report by the defendant’s planning officers set out the duty under section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have regard to the desirability of preserving or enhancing the character or appearance of a conservation area; and stated that the significance of the historical use of the site for railway purposes had to be afforded greater protection than the retention of non-listed buildings making a positive contribution to the conservation area. Whilst the proposed development would cause substantial harm to the significance of the conservation area, that was outweighed by the substantial and significant public interest benefits of granting permission. The defendant granted conditional planning permission.
The claimant applied for judicial review contending that (i) the defendant had unlawfully failed to produce a statement containing the main reasons for the decision contrary to regulation 24(1) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011; and (ii) the planning officer’s conclusion that the historical use of the site for railway purposes should be regarded as of greater importance than the preservation of the non-listed buildings was irrational and wholly inconsistent with the statutory purpose of section 72 of the 1990 Act.
Held: The application was dismissed.
(1) The development proposed by the interested party was “EIA development” within the meaning of the 2011 Regulations. The 2011 Regulations therefore applied to the development and brought with them the duty under regulation 24 to inform the public and the secretary of state of final decisions in relation to an application which required an environmental impact assessment (EIA). Where a local authority’s planning committee had agreed with the recommendation of the planning officers’ report, it could be taken to have adopted the reasoning in that report and the duty to give reasons under regulation 24(1) would effectively be discharged. The reasoning set out in the officers’ report would be part and parcel of the decision-making process, thereby achieving the important discipline of ensuring that the decision-maker had understood and followed through with rigour a structured and well-considered decision-making process. The planning committee had reached a collective decision undertaken by means of a resolution. In practice, that meant that the individual members of the committee determined whether they proposed to support the resolution to grant planning permission, and if so subject to what conditions or obligations, or refuse it. Individual members might have their own particular reasons for choosing to vote for or against a resolution, which may or may not be articulated, but it was the terms of the resolution which they were voting to support in a collective decision, and therefore the focus of the court’s enquiry. Little useful purpose would be served by a forensic enquiry into the particular reasons why individual members might have voted in a particular way. That was not an appropriate enquiry where the only issue before the committee was whether at the time of voting they were willing to support the resolution before them or not: Dover District Council v CPRE (KENT) [2018] EGLR 1 followed.
(2) The phrase “character or appearance” in section 72 of the 1990 Act was not confined simply to the historic built fabric of the area. The inclusion of the area’s “character” clearly broadened the range of qualities which could be relevant to the evaluative judgment and incorporated within the test matters such as historic uses and the contributions which they made to the character of the area by influencing the understanding of that area and reflecting experiences that were not simply visual. There was no warrant within the statutory language for concluding that built fabric was to be regarded as of paramount importance, or was pre-eminent over, other dimensions of the historic interest of the area such as the uses that historically had taken place within it. An evaluative judgment was called for which incorporated a broad range of historic influences and features bearing upon the character and appearance of the area, and the relative priority which might be given to any of those aspects would depend upon an understanding of the historic interest underlying the designation of the conservation area. The range of matters which could bear upon historic interest were many and various, but included the uses which had a historic association with the area and which added to its character, not only in terms of the way in which those uses might have influenced the built form or appearance of the area, but also in how they had impacted upon the experience of the area in ways which were other than visual. The weight to be attached to each of the relevant historic dimensions or ingredients of the judgment was a matter which section 72 clearly left to the decision-maker in each individual case. In this case, the analysis that the preservation of the use should be afforded greater significance than the retention of the non-listed buildings was an approach which was rationally available to the officers. There was nothing inconsistent with the duty under section 72 of the 1990 Act in them affording greater weight to the retention of the historic railway use.
Richard Harwood QC (instructed by Sharpe Pritchard LLP) appeared for the claimant; Alistair Mills (instructed by Milton Keynes Council) appeared for the defendant; Reuben Taylor QC (instructed by Clyde & Co LLP) appeared for the interested party.
Eileen O’Grady, barrister
