Listed building — Planning permission — Council granting planning permission relating to listed building — Appellant seeking permission to claim judicial review of decision on ground that relevant policy statement not considered — Permission refused — Whether permission for “enabling development” within meaning of policy statement — Whether appellant failing to act promptly — Appeal allowed
The respondent council granted planning permission to a developer for the change of use of a Grade II listed building at Headington, Oxford, from seven residential units to six flats. This involved external modifications to the building, and the construction of five mews houses in the grounds. The appellant, a local resident and chairman of the residents’ association, sought permission to claim judicial review of that decision.
The appellant contended that the council, in determining the planning application, had failed to take account of a material consideration, that is, a 1999 policy statement made by English Heritage in its capacity as statutory advisor to the Secretary of State. The policy statement proposed the concept of “enabling development”, which it defined as development that would normally be rejected as being clearly contrary to planning policy objectives, but was acceptable because the disbenefit caused to the public was offset by a benefit funded from the value added to the land by the planning consent. It was common ground that the council had not considered the policy statement, and the sole issue was whether the development was acceptable in its own right, so as to make the statement irrelevant, or whether it was “enabling development”.
The judge found, on the evidence, that the council had considered the development to be acceptable in itself. He refused permission for judicial review on that basis, and on the ground that the appellant had not made his claim promptly, or within three months of the date when grounds to make the claim first arose, as required by CPR 54.5(1). For that purpose, the judge took as the relevant date the date of the planning committee’s resolution to grant permission. On an appeal by the appellant, further evidence was admitted from six councillors who sat on the council’s planning committee in order to clarify what had happened at various meetings relating to the planning application in issue.
Held: The appeal and the judicial review claim were allowed.
1. The problem in establishing the basis for the council’s decision stemmed from their failure to approach the matter in two stages. They should first have considered whether the new development was acceptable in itself, and then, if it was not, they should have gone on to consider whether it was justified as “enabling development”. Although the judge had been entitled to reach the finding he had on the material before him, the new evidence indicated that the council’s planning committee had considered the mews houses to be an unacceptable intrusion on the listed building. Accordingly, had the first issue been put to the planning committee as a separate question, they would have concluded that the development was not acceptable in itself. The question of whether the proposed development was acceptable as “enabling development” therefore arose, and the planning permission could, in the circumstances, have been granted only on the basis that it was. Since the policy statement was a material consideration in relation to that issue, and had not been considered, the planning permission ought to be quashed.
2. The date when grounds to make the claim first arose, for the purposes of CPR 54.5(1), was the date when notice of the planning permission was issued, not the date of the committee resolution: R (on the application of Burkett) v Hammersmith and Fulham London Borough Council [2002] 2 PLR 90 applied. Since the appellant had brought his claim within three months of the notice, and had not otherwise, in the circumstances, acted with any lack of promptness, the judge had erred in refusing permission to claim judicial review on that ground. Permission was accordingly granted, and the planning permission quashed pursuant to the court’s power to determine the case under CPR 52.15(4).
Richard Harwood (instructed by Richard Buxton, of Cambridge) appeared for the appellant; Reuben Taylor (instructed by the solicitor to Oxford City Council) appeared for the respondents.
Sally Dobson, barrister
