Town and country planning – Planning permission – Officer’s report – Claimant applying for judicial review of decision to grant planning permission for redevelopment of timber yard – Whether defendant failing to take account of harm to fabric of yard building and historic use – Whether defendant failing to apply policy on conservation of wider historic environment – Whether defendant failing to take account of National Planning Policy Framework (NPPF) on significance of a non-designated heritage asset – Application dismissed
The claimant applied for judicial review of the decision of the defendant planning authority to grant planning permission for the redevelopment of a timber yard known as Newson’s Yard behind 41 to 63 Pimlico Road, London SW1. The decision was made on the basis of a report of the director of planning which recommended granting conditional permission subject to an agreement under section 106 of the Town and Country Planning Act 1990 to secure highway and parking benefits. The yard comprised a building which had external brick walls, internal brick pillars and a glass lantern roof. It had been occupied by the claimant as a timber and builders’ merchants since the 1990s and was let by the first interested party, who applied for the permission. The remaining interested parties were the freeholders.
The permitted development would not materially alter the structure and external appearance of the yard building but, internally, it would be subdivided into retail units and would no longer be suitable for use as a timber or builders’ merchants. The site lay within Belgravia Conservation Area. A draft conservation area audit identified the buildings fronting on to Pimlico Road as “unlisted buildings of merit” which “make a significant contribution to the character and appearance of that part of the conservation area”. The yard itself was identified as making a neutral contribution.
The claimant argued that the defendant had erred in law when it granted the permission by failing to take into account: (i) the harm that the proposed development would cause to the fabric of the yard building and its historic use; (ii) policy S25 of the Westminster City Plan concerning conservation of the wider historic environment and its extensive heritage assets; and (iii) para 135 of the National Planning Policy Framework (NPPF) on taking account of the significance of a non-designated heritage asset.
Held: The application was dismissed.
(1) Planning officers’ reports were not to be read with undue rigour, but with reasonable benevolence, bearing in mind they were written for councillors with local knowledge. The question for the court would always be whether, on a fair reading of the report as a whole, the officer had materially misled the members on a matter bearing upon their decision. It was only if the advice in the officer’s report was such as to misdirect the members in a material way, so that otherwise the decision would or might have been different, that the court would be able to conclude that the decision itself was rendered unlawful by that advice. Where the line was drawn between an officer’s advice that was significantly or seriously misleading in a material way, and advice which was misleading but not significantly would always depend on the context and circumstances in which the advice was given and on the possible consequences of it. Where an officer had simply failed to deal with a matter on which the committee ought to receive explicit advice if the authority was to be seen to have performed its decision-making duties in accordance with the law, then the court would interfere, but only if there was some distinct and material defect in the officer’s advice. An officer’s report should not be laboriously dissected in order to find fault: Mansell v Tonbridge and Malling District Council [2017] EWCA Civ 1314; [2017] PLSCS 174 and St Modwen Developments Ltd v Secretary of State for Communities and Local Government and others [2017] EWCA Civ 1643; [2017] PLSCS 196 followed.
(2) The loss of internal features was capable of being a material consideration even though those features could be removed without the need for planning permission where that loss was an integral part of development that did need planning permission. The effect of the application on the significance of the yard had to be taken into account, nothing more, and nothing less. In this case, the fact that the internal changes proposed were not the subject of planning control was relevant in assessing the harm of those changes. There were some passages in the report which suggested that these were of no concern as the yard building was not listed. It would have been more helpful had the report spelt out that those changes and the harm of the proposed development to the historic use of the yard and the service it provided had to be weighed in the balance with the benefits identified in the report such as the increase in retail and housing provision and the economic benefits which that increase would bring. However, the focus on a few passages in the report amounted to the sort of dissection which was not permissible. The report, read fairly as a whole, sufficiently engaged with the issues. It did so primarily in the context of the impact on the conservation area, but that was not surprising given that it was that heritage asset which attracted the greatest protection. The historic use of the yard was acknowledged and assessed. So too was the service which the yard provided, but it was properly pointed out that planning protection related to Class A1 retail use and not to specific retail businesses. The report fulfilled the requirements considered by Lewison LJ in R (on the application of Khodari) v Royal Borough of Kensington and Chelsea and another [2017] EWCA Civ 333; [2017] EGLR 28 and summarised the objections on those issues. It did not say that those objections were irrelevant, but it assessed the harm. It should not be left to members to go rooting around for the issues in a substantial amount of documentation. The policies were clearly referred to in the heritage assessment submitted on behalf of the interested party and elsewhere. In any event the report sufficiently assessed the harms and identified the key issues, as the director was entitled to do.
Gregory Jones QC (instructed by Freeths LLP) appeared for the claimant; Saira Kabir Sheikh QC and Cain Ormondroyd (instructed by Direct Access) appeared for the defendant; Christopher Katkowski QC and Richard Moules (instructed by Ashurst LLP) appeared for the first interested party; The other interested parties did not appear and were not represented.
Eileen O’Grady, barrister
