In R (on the application of Carnegie) v London Borough of Ealing (see PP 2014/185), the court helpfully summarised the principles that can be drawn from recent judicial dicta on the statutory duties arising under sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 in the following way.
(1) The section 66(1) and section 72(1) duties do not allow a local planning authority (“LPA”) to treat the desirability of preserving a listed building etc or preserving or enhancing the character etc of a conservation area as mere material considerations, to which it can simply attach such weight as it sees fit. (2) Where on consideration harm is likely to flow, the LPA must give that harm considerable importance and weight. (3) In such circumstances, there is strong presumption against planning permission being granted. (4) That presumption is a statutory one. (5) It is not an irrebuttable presumption, in that it can be outweighed by material considerations powerful enough to do so. (6) But a LPA can only strike a balance if it is conscious of the statutory presumption, and if it demonstrably applies that statutory presumption to the development proposals it is considering.
Those principles have now been applied again in R (on the application of Hughes) v South Lakeland District Council [2014] EWHC 3979 (Admin). There, the claimant sought judicial review of a decision by the LPA to grant planning permission for demolition and redevelopment on a site the whole of which lay within a conservation area. She succeeded on one of her grounds only, namely that the officer’s report – and therefore the decision based upon it – were flawed in the approach taken to heritage and conservation impacts. In particular, the author failed to apply the statutory presumption.
The court noted that the report acknowledged that harm would flow to the conservation area. But the judge went on to conclude not only that the report failed to refer to the statutory presumption but also that it contained no indication that the author had actually applied it. Accordingly the report had to be viewed as flawed.
Moreover, there was no conceivable basis for exercising the discretion not to quash the planning permission. Preserving and enhancing the character or appearance of the conservation area had been a major part of the planning debate, and the decision to grant planning permission had been by a bare majority. It was quite impossible to say that, even with the application of the statutory presumption, the result would have been the same.
John Martin is a planning law consultant
