Town and country planning – Conservation area – Preservation and enhancement policy – Defendants granting planning permission for construction of singe dwelling – Application site being within conservation area – Officer’s report finding some harm likely in part of conservation area but overall area retaining special character and appearance – Claimant applying for judicial review – Whether report erring in approach to conservation area, National Planning Policy Framework (NPPF) and planning policy – Application granted
The defendant local authority granted planning permission, on the application of the interested party, to erect a new detached house on land to the west of Newbury, Courtmead Road, Cuckfield, West Sussex. The site was an area of open land adjacent to the end of the road. It had previously been a play area for children. The site had views to the south towards an area of outstanding natural beauty (AONB). There was undeveloped land on two and a half sides in the conservation area. The views across the site from the north were of an open grassed area leading on to the view of the countryside beyond. Those views had policy protection under Policy CNP 5. The site formed part of the direct visual connectivity between the village and the countryside.
The officer’s report produced for the planning committee on the application, in the context of conservation areas, made reference to (i) the duty in section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 to pay special attention to the desirability of preserving or enhancing the character or appearance of that area; (ii) paragraphs 129–134 of the National Planning Policy Framework (NPPF) in relation the treatment of heritage assets; and (iii) the policies of the development plan seeking to protect the special character and appearance of the conservation area.
The report concluded that the development proposal might lead to some limited harm to one part of the conservation area occasioned by the loss of panoramic views, but that the overall character and appearance of the conservation area would be preserved. Accordingly, having applied the test in section 72 of the 1990 Act, the relevant paragraphs of the NPPF and having found that the development proposal was in accordance with the development plan, the report recommended that permission be granted. The committee followed that recommendation and granted the permission sought.
The claimant applied for judicial review of that decision on a number of grounds including that the officer’s report demonstrated a flawed approach in relation to conservation areas in the context of section 72 of the 1990 Act, the NPPF and the development plan.
Held: The application was granted.
(1) The defendants had erred in their approach to the general duty as regards conservation areas in the exercise of planning functions pursuant to section 72 of the 1990 Act. Section 72 required a local authority to determine whether a proposed development would cause harm to the character or appearance of a conservation area. If the answer to that question was that harm would be caused, significant weight had to be given to the fact that harm would be caused. If the NPPF was to be addressed properly, the value of the asset and the degree of harm both had to be addressed. If the level of harm was substantial, then consent should be refused under paragraph 133 unless the harm or loss was necessary to achieve substantial public benefits that outweighed the harm or loss. If the level of harm was less than substantial, any benefits had to be weighed against the degree of harm pursuant to paragraph 134.
(2) If there was harm to the character and appearance of one part of the conservation area, the fact that the whole would still have a special character did not overcome the fact of that harm. It followed that the character and appearance would be harmed. While the question of the extent of the harm was relevant to consideration of its effects, it could not be right that harm to one part of a conservation area did not amount to harm for the purposes of considering the duty under section 72 of the 1990 Act. On the facts of the present case, it followed that the development would cause harm to the character and appearance of the conservation area. That had to attract significant weight as a disadvantage of the development as a matter of law: Bath Society v Secretary of State for the Environment [1991] 2 PLR 51, Heatherington (UK) Ltd v Secretary of State for the Environment [1994] 2 PLR 9 and Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council [2014] 2 EGLR 85; [2014] EGILR 23 followed.
(3) The officer’s report relied on by the authority in granting permission was flawed, in that it concluded that the special character as a whole would be preserved. That error had had an impact on the consideration of the duty under section 72 of the 1990 Act, the application of paragraphs 129–134 of the NPPF and the conclusion that the proposed development was in accordance with the development plan for the purposes of section 38(6) of the Planning and Compulsory Purchase Act 2004. Accordingly the report had to be reassessed in the light of section 38(6) and the grant of planning permission would be quashed.
Andrew Sharland (instructed by Thomas Eggar, of Crawley) appeared for the claimant; Robert Walton (instructed by Mid-Sussex District Council Legal Department) appeared for defendants.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Irving) v Mid-Sussex District Council.
