A few recent cases illustrate how vulnerable planning permissions can be to judicial review where there are material errors or omissions in the officer’s report to committee.
R (Wyeth-Price) v Guildford Borough Council (Lang J, 8 December 2020) is a classic example, and Lang J sets out in her judgment a textbook explanation of the legal framework, established by caselaw, in relation to decision making and officers’ reports.
It seems to me that the most risk-prone areas of an officer’s report will be:
⁃ summaries of the conclusions of often detailed and highly technical analysis, where the decision maker must not be “significantly misled” by the summary or indirectly by the material on which the summary is based – classic areas for scrutiny being effects on daylight and sunlight, viability, air quality, and noise
⁃ the interaction with other legal regimes, for example environmental impact assessment, the Conservation of Habitats Regulations or the public sector equality duty
⁃ application of legal or policy tests – classic areas being the NPPF tilted balance, green belt, AONB and heritage.
Wyeth-Price is another in a rich seam of cases where the High Court has quashed a planning permission due to the failure of the officer properly to apply the heritage tests in the NPPF, which must have been frustrating to Bewley Homes, which had achieved, so it thought, planning permission for 73 dwellings at Ash Manor, Ash Green, Guildford, following a committee resolution on 4 December 2019 on the basis of a 49 page officer’s report.
The effect on nearby listed buildings was a central issue in the consideration of the application. To quote from Lang J’s judgment:
“Adjacent to the Site…there is a small complex of historic buildings and farm structures, known as Ash Manor. The largest building within the complex is Grade II* listed and has been converted into two residential dwellings, known as Ash Manor and Old Manor Cottage. The Oast House lies to the south of it and its stables are Grade II listed. To the south of this is a further residential dwelling known as Oak Barn which is also Grade II listed. The significance of Ash Manor is derived from its historic and architectural interest as a moated manor house, thought to have thirteenth century origins, with successive phases of development dating to the sixteenth, seventeenth and mid-twentieth centuries. According to Historic England, the current agricultural and open character of the setting of Ash Manor is one that has remained constant through its history. It advised that the proposed development would cause harm to the setting of the heritage assets, assessed at less than substantial harm.”
The importance of the heritage aspect in resisting the proposal had not been lost on objectors – see for example a 2017 Guildford Dragon article Grade II* Listing for Ash Manor House May Scupper Development Proposals:
“A homeowner in Ash Green is hoping that a new Grade II* listing from Historic England may prevent proposed developments that would surround his moated 13th-century manor house with nearly 200 houses, possibly more if further envisioned development phases are built out.
David Weller, who owns Old Manor Cottage, half of the original medieval Ash Manor House, off Foreman Road, said: “If the proposed developments go ahead the setting of our historic house will be ruined for good.”
The challenge was brought by a local resident who was formerly the chair of the Ash Green Residents’ Association. There were three grounds:
“i) Ground 1: Failure to apply section 66(1) of the PLBCAA 1990 and failure to take account of paragraphs 193 and 194 of the Framework.
ii) Ground 2: Failure to have regard to a relevant consideration, namely, the advice of Surrey Wildlife Trust in respect of a veteran tree at the Site, and acting irrationally in departing from the advice without reasons.
iii) Ground 3: Failure to have regard to material considerations concerning flooding at the Site and/or acting irrationally by ignoring expert evidence on this matter”
Grounds 2 and 3 failed and so I am just focusing on ground 1, relating to section 66(1) of the Listed Buildings Act (“In considering whether to grant planning permission…for development which affects a listed building or its setting, the local planning authority…shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses”) and paragraphs 193 and 194 of the NPPF:
“193. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation (and the more important the asset, the greater the weight should be). This is irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to its significance.
194. Any harm to, or loss of, the significance of a designated heritage asset (from its alteration or destruction, or from development within its setting), should require clear and convincing justification. Substantial harm to or loss of:
a) grade II listed buildings, or grade II registered parks or gardens, should be exceptional;
b) assets of the highest significance, notably scheduled monuments, protected wreck sites, registered battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites, should be wholly exceptional.”
Lang J sets out the relevant tests and case law in her judgment before summarising the problems with the report:
“The Claimant submitted that the planning officer’s report seriously misled the Planning Committee by failing to advise members on the weight to be given to the harm to heritage assets in the balancing exercise. Although he set out section 66(1) PLBCAA 1990, he did not explain that a finding of harm to a listed building is a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise. He failed to refer at all to paragraph 193 of the Framework, which requires “great weight” to be given to the asset’s conservation and the more important the asset, the greater the weight should be. He also failed to refer to paragraph 194 which requires a “clear and convincing justification” for any harm. Applying the approach of Sales LJ in Mordue, the Claimant submitted that there were positive indications in the report that the officer had not taken paragraphs 193 and 194 into account.”
“The planning officer expressly referred to the duty under section 66(1) PLBCAA 1990, both in his advice on the statutory framework and at the critical stage of the balancing exercise. However, he did not advise members on how they were required to apply the section 66(1) duty to the balancing exercise. The application of the section 66(1) duty is not explicitly clear from the wording of section 66(1), as demonstrated by the fact that it was only after the case of Barnwell that it was fully appreciated by experienced planning inspectors and lawyers that section 66(1) imposed a duty to treat a finding of harm to a listed building as a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise and that it was not open to the decision-maker merely to give the harm such weight as he thinks fit, in the exercise of his planning judgment.”
“Can it be inferred that the planning officer in this case took into account paragraphs 193 and 194 of the Framework in the balancing exercise he conducted in his report and thereby enabled members of the Planning Committee to take them into account?
In my view, there were several positive indications to the contrary…”
“Thus, in 2017, members were advised that the effect of section 66(1) PLBCAA 1990 was that a finding of harm to a listed building was a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise. Members were also reminded, for the second time, of the guidance in the Framework that “great weight” should be given to the asset’s conservation – the more important the asset, the greater the weight should be – and that any harm or loss required “clear and convincing justification” for any harm. None of this advice was given in the October 2019 report. The fact that, in 2017, the planning officer was recommending refusal of permission, whereas, in 2019, he was recommending a grant of permission, ought not to have had any bearing on whether or not to include this advice in the report, and it was not suggested that it did.
“I now return to the question whether the advice was seriously misleading, thereby misleading the members in a material way so that, but for the flawed advice, the Planning Committee’s decision would or might have been different. In my judgment, the planning officer must have been aware of the guidance given by the Court of Appeal in Barnwell on the application of the section 66(1) duty to the balancing exercise and the guidance in paragraphs 193 and 194 of the Framework, as it is well-known among professional planners and he advised on it in the 2017 report. However, on a fair reading of his October 2019 report, he did not advise members of the Planning Committee on this guidance and he did not apply it when he undertook the balancing exercise on this occasion.
At the hearing I asked the parties whether an experienced member of the Planning Committee, who had been referred to this guidance in other applications, perhaps even the 2017 application, might have been aware of the guidance, even though it was not to be found in the planning officer’s report. When I raised this possibility with the parties, Mr Williams for the Council did not wish to rely upon it. Mr Fitzsimons for the Claimant rejected it on the basis that busy Committee members relied upon the officer’s report and did not do their own research. On instructions, he said that new members had recently been appointed to the Planning Committee, following elections, and so it could not safely be assumed that they were aware of the guidance, from the 2017 application or any other. It seems to me that if a member of the Planning Committee did consider that the planning officer’s report did not give accurate and/or sufficient advice on how to conduct the balancing exercise, the matter would have been raised at the meetings. The minutes of the two meetings of the Planning Committee do not record that members sought further clarification or guidance on how to conduct the balancing exercise at those meetings. Therefore I conclude that members of the Planning Committee relied only upon the advice given in the planning officer’s reports.”
There was also a short addendum report addressing amendments made to the scheme but this “report repeated the error of advising members to undertake an untilted balancing exercise, weighing the less than substantial harm to the heritage assets against the public benefits of the proposal without apparently taking into account the requirement to accord “considerable importance and weight” to a finding of harm to a listed building and “great weight” to the asset’s conservation, as a Grade II* listed building, and the need for a “clear and convincing justification” for any harm.”
In concluding that the effect of the officer’s balancing exercise was to “play down the part of the exercise represented by [paragraph 193 and 194] and to tilt the balance towards emphasising the absence of substantial harm and the public benefits to be weighed on the other side of the balance“, Lang J draws upon another case earlier this year R (Liverpool Open and Green Spaces Community Interest Company). Liverpool City Council (Court of Appeal, 9 July 2020) where the Court of Appeal quashed planning permission on the basis that there was a “substantial doubt” as to whether the section 66(1) duty had been met where the officer’s report had failed to refer to objections to the proposals from the council’s Urban Design and Heritage Conservation team, a conclusion “only strengthened by the absence, at least from the section of the officer’s report in which his assessment is set out, of any steer to the members that a finding of harm to the setting of the listed building was a consideration to which they must give “considerable importance and weight“.
In fact, omissions from a report of a reference to relevant objections – or misleading inferences from a lack of an objection – are a particularly high risk area. The Court of Appeal in the Liverpool case refer back to R (Loader) v Rother District Council (Court of Appeal, 28 July 2016) where the officer’s “report had indicated that the Victorian Society, which had objected to a previous application, had made no comments on the new proposal. In fact, they had not been consulted. The appellant argued that the committee might have been left, wrongly, with the impression that the Victorian Society were now satisfied with the revised design. This court accepted that “[in] the context of the duty [in section 66(1)], … in taking this misinformation into account, [the committee] could be said to have proceeded on the basis of an error of fact”, but that “the unlawfulness [was] better described as the taking into account of an immaterial consideration” (paragraph 57). This was enough to justify quashing the planning permission (paragraph 58).”
We now have an even more dramatic example in the case of the One Eastside development in Birmingham, a proposal for 667 apartments in a 51 storey tower near Curzon Street station.
The scheme was the subject of a 5 December 2019 Committee report (from page 122 of the pdf) but the resulting planning permission was challenged by nearby land owner LaSalle (See e.g. BD Online Glancy Nicholls tower faces judicial review ((9 November 2020).
Greg Jones QC and Esther Drabkin-Reiter have been acting for LaSalle and it seems from Francis Taylor Building’s 9 December 2020 press statement that the council has consented to judgment on the basis that “an objection to the proposed development made by the Victorian Society was not reported to the Planning Committee and further that the objection made by the Victorian Society went beyond those matters identified by Historic England which were reported to the Planning Committee.”
How precarious a planning permission can be until it has passed the deadline for a legal challenge (time again to tout my proposal that the judicial review pre-action protocol should encourage early identification by claimants of these sorts of points, before planning permission is issued – my 30 May 2020 blog post Revisiting Burkett: Should The JR Pre-Action Protocol Be Updated? – whilst recognising that in some cases, including possibly the One Eastside example, the extent of the errors and omissions may only in fact become clear through the litigation process itself).
Simon Ricketts, 12 December 2020
Personal views, et cetera