Town and country planning – Planning permission – Listed building consent – Appellant applying for judicial review of grant of planning permission and listed building consent for development of studio and historic wall – High Court dismissing application – Appellant appealing – Whether respondent local authority misinterpreting local plan policy – Whether respondent taking inconsistent approach to assessment of contribution of existing building – Appeal allowed
The appellant applied for judicial review of the decisions of the respondent local planning authority to grant the interested party both planning permission and listed building consent for the development of Courtyard Studios, Hollingbourne Hill, Hollingbourne, Kent (the development site). The interested party took no part in the proceedings.
The appellant and his family lived at Hollingbourne House, a Grade II listed building, and the entirety of the application site fell within the curtilage of Hollingbourne House, which was to the south west.
The planning permission was granted for demolition of the rear section of the building and erection of replacement structure and conversion of front section of building including external alterations, to facilitate the creation of two dwellings with associated parking and garden areas.
The listed building consent was for demolition of the existing derelict and unstable (north-east facing) garden wall, reconstruction on the existing line at a reduced height with two additional openings, repairs, restoration of other garden walls and restoration of one sunken glasshouse.
Policy DM5 in the Maidstone Borough Local Plan provided that the residential development of brownfield sites in the countryside which were not residential gardens would be permitted if it met certain criteria (paragraph 1.i). Those include a criterion that the “site is not of high environmental value”.
The High Court decided that the meaning of “site” was limited to the land where the residential development was to take place (leaving out of account that part of the application site which was residential garden). The appellant appealed.
Held: The appeal was allowed.
(1) Planning policies had to be interpreted objectively, in accordance with the language used, read in its proper context. The context in the present case was that policy DM5 was dealing with development on previously developed land (brownfield land). On the natural interpretation of the words of policy DM5, read in context, the reference to “site” in paragraph 1.i meant the application site, ie, the site which was the subject of the application for planning permission: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69; [2012] PTSR 983 and Rectory Homes Ltd v Secretary of State for Housing, Communities and Local Government [2020] EWHC 2098 (Admin); [2020] PLSCS 156; [2021] PTSR 143 considered.
The aim of policy DM5 was to ensure that redevelopment would take place on previously developed land only if the site was not of high environmental value. Where an application site consisted both of previously developed land (which might be redeveloped) and other land such as a residential garden (where redevelopment was not permitted), it did not accord with the purpose of the policy if only the environmental value of part of the application site was assessed and if the “protected” part (the residential garden) was left out of account.
(2) The premise on which the respondent proceeded had been mistaken. It considered that the “policy” did not apply to residential gardens as the explanatory text made it clear that residential gardens were excluded from the definition of a brownfield site for the purpose of policy DM5. However, that was to equate the policy as a whole with the definition of “previously developed land”.
Where residential gardens together with other previously developed land formed part of a single application for redevelopment, there was no reason why other parts of policy DM5 could not apply. In particular, there was no reason why the residential garden area forming part of the application for planning permission should be left out of account when deciding if the “site” as a whole was of high environmental value.
(3) In the present case, it was clear that the planning officer’s report only considered whether the existing studio building was of high environmental value. He did not consider whether the application site, the existing building, the walled gardens and the land connecting with the road was, taken as a whole, of high environmental value. Accordingly, the respondent erred in its interpretation and application of policy DM5.
The planning permission and the listed building consent would be quashed and the matter remitted to the respondent to decide whether or not the application site, comprising the studio building, the walled garden and the land connecting with the road, had high environmental value and whether the other criteria in DM5 were satisfied.
(4) A decision of a planning inspector or a local planning authority on a critical issue such as the interpretation of planning policy, aesthetic judgments or assessments of need might, depending on the circumstances, be a material consideration for subsequent planning decisions. If a subsequent decision maker departed from the conclusion on such an issue, he would need to give reasons for doing so or risk that a court would conclude that the subsequent decision-maker failed to have regard to a material planning consideration: North Wiltshire District Council v Secretary of State for the Environment [1992] 3 PLR 113 considered.
If a decision was quashed for reasons which did not affect the conclusions of the decision-maker on a specific issue, the conclusions on that issue might be a material consideration for subsequent decision makers: Vallis v Secretary of State for Local Government [2012] EWHC 578 (Admin), R (on the application of Fox Strategic Land and Property Ltd) v Secretary of State for Communities and Local Government [2012] EWCA Civ 1198; [2013] 1 P & C R 152 and R (Davison) v Elmbridge Borough Council [2019] EWHC 1409 (Admin); [2020] 1 P & CR 1 considered.
Reading the planning officer’s report as a whole, the focus was on the effect of the proposed redevelopment on the listed building. In that regard, he considered that the “impact of the proposal on the significance of this heritage asset would be less than substantial”. Any difference between the current planning officer’s assessment of the existing building and any earlier view was not critical or material to the advice that the officer was giving to the planning committee. That advice was not based on any difference in the assessment of the impact of the existing buildings.
Harriet Townsend (instructed by Richard Buxton Solicitors) appeared for the appellant; Giles Atkinson (instructed by Mid Kent Legal Services) appeared for the respondent; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Kinnersley) v Maidstone Borough Council