In R (on the application of Save Britain’s Heritage) v (1) Liverpool City Council (2) Regeneration Liverpool and Neptune In Partnership Ltd [2016] EWCA Civ 806, the Court of Appeal had to consider whether Liverpool City Council had breached the World Heritage Committee of Unesco’s Operational Guidelines by failing to notify the Department for Culture, Media and Sport and Unesco of its grant of planning permission to Regeneration Liverpool and Neptune In Partnership Ltd for a major development of mixed uses within the buffer zone of a World Heritage Site.
Planning permission was granted after a Heritage Assessment submitted with the application concluded that the impact was not adverse due to the low heritage significance of the building. Historic England also did not object to the development. Save Britain’s Heritage (“Save”) appealed against the permission and argued that a judicial review was required as the council had misconstrued planning guidance. Save interpreted “may affect” as meaning in “a negative, neutral or positive way” and therefore said the proposal was one that “may affect” the outstanding universal value (“OUV”) of the site.
The High Court said the challenge was more concerned with practice guidance than planning policy. It ruled that if every proposal for development that could have an effect on the OUV had to be referred to Unesco there would be considerable problems for the system. The High Court interpreted “may affect” as may have an “adverse impact on the OUV” and concluded that, although the council had not separately consulted DCMS, it had, by consulting Historic England, brought the proposal to the attention of the government’s specialist adviser on historic environment development in good time. Historic England can then at its discretion advise the government accordingly.
The Court of Appeal agreed with the High Court that it was significant that Historic England did not think it necessary to refer the proposal to DCMS and that the secretary of state did not call in the application for its own determination. It rejected the notion that the effect of new development on the setting of a World Heritage Site must be an impact of any kind on its OUV, stating that this concept is neither found in government policy nor planning practice guidance. The council’s action in granting planning permission after notifying Historic England was not therefore considered unlawful.
The appeal was dismissed.
Martha Grekos is a partner and head of planning at Howard Kennedy LLP
