R James Hall AndCompany Ltd v City of Bradford Metropolitan District Council
| Jurisdiction | England & Wales |
| Judge | Belcher |
| Judgment Date | 01 November 2019 |
| Neutral Citation | [2019] EWHC 2899 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1863/2019 |
| Date | 01 November 2019 |
[2019] EWHC 2899 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT (LEEDS)
HER HONOUR JUDGE Belcher
Case No: CO/1863/2019
and
Mr Killian Garvey (instructed by Shoosmiths) for the Claimant
Mr Philip Robson (instructed by City Solicitor, City of Bradford Metropolitan Council) for the Defendant
Hearing date: 22 October 2019
Approved Judgment
In this matter the Claimant challenges the Defendant Council's (the “Council”) decision of 28 March 2019 granting planning permission for the demolition and development of the old Haworth fire station on Station Road in Haworth (the “Site”). The development comprises the construction of an A1 food retail unit with parking and associated works (the “Approved Development”). References in this judgment to the trial bundle will be by Tab number, followed by the page number, for example [15/276].
I was provided with two lever arch files containing authorities, including statutory extracts and 28 cases. Prior to the hearing I had read only those parts of the authorities which I was invited to read as part of counsels' lists of essential reading. I was already familiar with some of the other authorities. At the end of counsels' submissions, they agreed that there were a number of the cases which I did not need to read prior to giving my judgment. Those were the cases in the authorities' bundle at Tabs 5, 9, 10, 12, 13, 15, 18, 20, 21, 22, 23, 25, 26, 28, 31 and 32. I was invited to read the relevant paragraphs only of the case at Tab 19, but to otherwise read the authorities in full. I confirm that I have done so. I do not consider it necessary to refer to all of those authorities in the course of my judgment, but a failure by me to mention an authority does not mean I have not read it or considered it for the purposes of this judgment.
The Site is adjacent to, but not within, the Haworth Conservation Area (“HCA”), and close to the Grade II listed Bridgehouse Mills. It is otherwise bordered by residential properties and railway sidings. The Claimant challenges the grant of planning permission on three grounds:
i) that the Council's approach to the Approved Development's impact upon the HCA was flawed
ii) that the inclusion of the tailpiece “unless otherwise agreed in writing with the local planning authority” contained in the planning conditions 3, 7, 12 and 13 was ultra vires and/or wrong in principle
iii) that the Council failed to comply with the requirements of Paragraph 189 of the National Planning Policy Framework (“NPPF”) in that the relevant Historic Environment Record (“HER”) was not consulted in considering heritage impacts.
The Facts
In common with many planning authorities, the Defendant offers a pre-application advice service whereby future applicants can seek preliminary views and advice from planning officers. This enables a developer to receive an early indication as to whether a proposal is likely to be acceptable, and to identify any issues that need to be addressed prior to the submission of a planning application. In this case the Second Interested Party (“Second IP”) was the applicant for planning permission.
The Second IP took advantage of the pre-application advice service. One of the Defendant's planning officers, Laura Eastwood was the officer allocated to deal with the pre-application enquiry [15/275: Witness Statement of Laura Eastwood, paragraph 3]. On 31 January 2018 she wrote a letter responding to the pre-application enquiry. Under the heading “DESIGN/IMPACT ON CONSERVATION AREA AND HERITAGE ASSETS” that letter includes the following paragraphs:
“There would be no objections to demolition of the existing fire station building, which is agreed to be of no heritage or architectural merit……
The site is very open on all sides, any new built form will be highly visible. The site is adjacent to the Haworth Conservation Area.
The site and existing buildings are not regarded as affecting the setting of the Grade II listed Haworth station building, but the proposed development would impact on views of the Grade II listed Bridgehouse Mills
Officers consider that in order for any new structure on this site to complement its context, better analysis and subsequent respect for the prevailing character of Haworth is required. We would urge a bespoke design solution which should be harmonious to its context. An approach to design, materials that pays due respect to local context will be essential to satisfy policies DS3 and EN3 of the core strategy” [15/279B]
In support of its application for planning permission, the second IP submitted a Planning and Retail Statement (“PRS”) dated June 2018, prepared by I D Planning. Section 6 of the PRS contains the Heritage Policy Assessment [5/104–108: paragraphs 6.1–6.46]. At paragraph 6.5 the PRS states as follows:
“As referred to above, the application site does not fall within the conservation area but its location adjacent to it suggests that the site forms part of the setting of the asset and therefore it is prudent to assess the proposal in respect of the setting of heritage assets.”
The PRS refers to and applies the Historic England Guidance on assessing the setting of heritage assets [5/104: paragraph 6.6]. The assessment identifies four significant key views and assesses the impact on each significant key view as “negligible” [5/107: paragraphs 6.33 (which contains a typographical error, but which is clear from its context refers to significant key view 3), 6.36, 6.38 and 6.41]. The conclusions to Section 6 include the following:
“In summary therefore the degree of harm to the conservation area and heritage assets is considered to be minimal” [5/108: paragraph 6.46]
The Claimant makes no complaint in respect of the methodology applied in the PRS.
As would be expected, the Council's Conservation Officer, Jonathan Ackroyd, was consulted in respect of the planning application. He has provided a Witness Statement which I shall consider later in this judgment. There is no contemporaneous documentary record as to any advice which he gave at the time. The officer's report (“OR”) to the Area Planning Panel, which was drafted by Laura Eastwood, contains the following in respect of the consultation with conservation:
“Conservation-the site is adjacent to but not within the Haworth Conservation Area and does not affect the setting of the grade II listed station building but may impact that of Bridgehouse Mills. The existing fire station building is of no merit and though the proposed structure would be of a similar size, scale and form to that presently on the site the cladding has an overtly industrial appearance. A bespoke solution is required which is harmonious to the context” [2/18].
That wording mirrors what is set out in the pre-application response letter of 31 January 2018 (set out in paragraph 4 above). There is no other reference to heritage assets within the OR.
At its meeting on 28 March 2019 the Area Planning Panel approved the application and granted planning permission including the following conditions:
“3. The use of the premises shall be restricted to the hours from 0600 to 2300, 7 days per week including bank or public holidays unless otherwise agreed in writing by the local planning authority.
7. The servicing of the site shall be carried out in accordance with the Service Management Plan submitted to and approved in writing by the Local Planning Authority and the plan shall be retained whilst ever the use subsists. The size of vehicles servicing the site shall be limited to no larger than 10.35m rigid vehicles unless otherwise agreed in writing with the Local Planning Authority.
12. Unless otherwise agreed in writing with the Local Planning Authority, prior to construction of the development, a detailed remediation strategy which removes unacceptable risks to all identified receptors from contamination, shall be submitted to and approved in writing by the Local Planning Authority. The remediation strategy must include proposals for verification of remedial works. Where necessary, the strategy shall include proposals for phasing of works and verification. The strategy shall be implemented as approved unless otherwise agreed in writing by the Local Planning Authority.
13. Unless otherwise agreed in writing with the Local Planning Authority, a remediation verification report, including where necessary quality control of imported soil materials and clean cover systems, prepared in accordance with the approved remediation strategy shall be submitted to and approved in writing by the Local Planning Authority prior to completion of the development. [1/2–4]
The Area Planning Panel resolved to approve the planning application pursuant to the following resolution:
“That the application be approved for the reasons and subject to the conditions set out in the Strategic Director, Place's technical report.” [3/81]
Accordingly, the resolution was to grant planning permission in accordance with the conditions found in the OR. None of the conditions in the OR contained the words “unless otherwise agreed in writing by the Local Planning Authority”.
Relevant Policies
By Section 70(2) Town & Country Planning Act 1990, in dealing with any application for planning permission the planning authority shall have regard to the provisions of the development plan, so far as material to the application and to any other material considerations. There is no dispute that The National Planning Policy Framework (“NPPF”) is a material consideration for the purposes of that Section. By Section 38(6) Planning and Compulsory Purchase Act 2004, a...
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