Pagham Parish Council v Arun District Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews DBE,Mrs Justice Andrews |
| Judgment Date | 04 July 2019 |
| Neutral Citation | [2019] EWHC 1721 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/50/2019 |
| Date | 04 July 2019 |
[2019] EWHC 1721 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Andrews DBE
Case No: CO/50/2019
and
Ashley Bowes (instructed by Barlow Robbins LLP) for the Claimants
Jeremy Cook (instructed by Arun District Council) for the Defendants
John Litton QC (instructed by James Smith (Planning Law Services) Ltd) for the Interested Parties
Hearing date: 25 June 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mrs Justice Andrews DBE
Introduction
By a Decision Notice dated 22 November 2018, reference P/140/16/OUT, following a meeting on 24 October 2018, the Development Control Committee (“the Committee”) of the Defendant Local Planning Authority (“ LPA”) granted outline permission for the development of a portion of land allocated for up to 400 dwellings within Strategic Policy H SP2a Arun Local Plan 2011–2031, known as “SDI Pagham South”, adopted in July 2018. I shall refer to the application site as “the Site”.
The Site, formerly agricultural land, lies to the north east of the historic core of Pagham, a large and expanding village on the coast of West Sussex, and to the west of the neighbouring village of Nyetimber. The northern boundary of the Site is a road named Summer Lane. The eastern boundary is demarcated to a large extent by the Pagham Road. A public footpath, footpath 101, runs across the centre of the Site from the Pagham Road in a westerly direction, before travelling southwards along the western boundary of the site. It moves further west, away from the Site, just before the southernmost end of that boundary.
At the meeting, the Committee received a 52-page report prepared by one of its planning officers, who recommended that permission be granted subject to conditions. That recommendation was adopted.
No reasons for the decision to grant the permission were given in the Decision Notice, but there was no legal obligation on the Committee to do so. This was not one of those special (and exceptional) classes of case in which fairness required reasons to be given in the interests of transparency, see the observations of Lord Carnwath in R(CPRE Kent) v Dover District Council [2017] UKSC 79 [2018] 1 WLR 108 at [50]– [60]. This was common ground.
In the section of the report entitled “ Built Heritage and Listed Buildings”, after citing relevant passages from the current National Planning Policy Framework (NPPF), the planning officer referred to a number of listed buildings situated within close proximity to the Site, including Pagham's medieval Grade 1 listed Thomas à Becket church, (“the Church”) which lies to the south west of the Site. He considered the impact that the proposed development would have on each of these buildings and/or their settings. He also summarised the views of Historic England, the statutory consultee, (who had not objected), and correctly informed the Committee that the LPA's Conservation Officer had raised no objection.
In the final paragraph of that section, the planning officer set out his conclusions:
“ Therefore, it is considered that the proposed development will preserve the setting of listed buildings surrounding the site and as such would accord with policies HER SP1, HER DM1 and HER DM4 of the Arun local plan.”
He added:
“ It should also be considered that the proposed development makes a significant contribution to the Local Planning Authorities housing land supply and is an allocated site within the Arun Local Plan. Therefore, it is considered that the public benefits of the development would outweigh any harm to the setting or significance of heritage assets in accordance with paragraphs 196 and 197 of the NPPF”.
The local Parish Council, the Claimant in these proceedings, objected to the proposed development (albeit on grounds wholly unrelated to heritage) and its objections were taken into consideration in the planning officer's report. It accepts that the decision to grant planning permission was one which a reasonable LPA, properly directing itself, would be entitled to reach. However, it claims judicial review of the decision on two grounds, namely:
i) The Committee failed to have regard to the duty under s.66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”);
ii) The planning officer materially misled the Committee by inadequately summarising the views of Historic England.
Both these grounds are concerned with the planning officer's assessment of the impact that the development would have on the setting of the Church.
The statutory duty
Section 66(1) of the Listed Buildings Act states that:
“ 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.”
“Preserving” in this context means “ doing no harm to”.
The current version of the NPPF contains the following relevant provisions:
Paragraph 189
In determining applications, local planning authorities should require an applicant to describe the significance of any heritage assets affected, including any contribution made by their setting. The level of detail should be proportionate to the assets' importance and no more than is sufficient to understand the potential impact of the proposal on their significance…
Paragraph 190
Local planning authorities should identify and assess the particular significance of any heritage asset that may be affected by a proposal (including by development which may affect the setting of a heritage asset), taking account of the available evidence and any necessary expertise. They should take this into account when considering the impact of a proposal on a heritage asset, to avoid or minimise any conflict between the heritage asset's conservation and any aspect of the proposal.
Paragraph 192
In determining planning applications local planning authorities should take account of:
a) the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation;
b) the positive contribution that conservation of heritage assets can make to sustainable communities including their economic viability;
c) the desirability of new development making a positive contribution to local character and distinctiveness.
Paragraph 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 harm amounts to substantial harm, total loss or less than substantial harm to its significance.
Paragraph 194
Any harm to…the significance of a designated heritage asset … from development within its setting… should require clear and convincing justification….
Paragraph 196
Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal….
Paragraph 197 of the NPPF relates to non-designated heritage assets and therefore does not apply to the Church; however, the Church was not the only heritage asset in the vicinity of the Site. That is why the planning officer also referred to paragraph 197 in his report. It states that:
The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining the application. In weighing applications that directly or indirectly affect non-designated heritage assets, a balanced judgment will be required having regard to the scale of any harm or loss and the significance of the heritage asset.”
Paragraph 193 of the NPPF reflects the approach to the s.66(1) duty laid down by the Court: see East Northamptonshire District Council v Secretary of State for Communities and Local Government [2014] EWCA Civ 137, [2015] 1 WLR 45 especially per Sullivan LJ at [24]–[29].
Where the heritage provisions in the NPPF are specifically brought to the attention of the decision maker by the planning officer in his report, as they were here, it can be inferred that the decision-maker (in this case, the Committee) has properly taken all those provisions into account, absent some positive contrary indication: Jones v Mordue [2015] EWCA Civ 1243, [2016] 1 WLR 2682 at [28]. It is not for the LPA to establish that it complied with its duty under s.66(1); it is for the challenger to demonstrate that at the very least there is substantial doubt that it has: R (Palmer) v Herefordshire County Council [2016] EWCA Civ 1061, [2017] 1 WLR 411 per Lewison LJ at [7].
Although Dr Bowes, on behalf of the Claimant, accepted that the relevant heritage provisions of the NPPF were brought to the attention of the Committee in the report, he contended that there was a positive contrary indication, because the planning officer misunderstood the heritage evidence submitted in support of the application, and equated a “less than substantial” harmful impact with a less than substantial objection, thus falling into the type of legal error recently considered by Kerr J in R(Liverpool Open and Green Spaces Community Interest Company) v Liverpool City Council ...
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