R (on the application of Save Britain's Heritage) v Liverpool City Council and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom |
| Judgment Date | 02 August 2016 |
| Neutral Citation | [2016] EWCA Civ 806 |
| Date | 02 August 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2016/0470 |
[2016] EWCA Civ 806
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MRS JUSTICE PATTERSON
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sales
and
Lord Justice Lindblom
Case No: C1/2016/0470
Mr Richard Harwood Q.C. (instructed by Harrison Grant) for the Appellant
Mr Anthony Crean Q.C. and Ms Constanze Bell (instructed by Liverpool City Council) for the First Respondent
Mr Richard Kimblin Q.C. and Ms Thea Osmund-Smith (instructed by Brabners LLP) for the Second Respondent
Hearing date: 22 June 2016
Judgment Approved by the court for handing down
Introduction
In this appeal we must consider the meaning and application of the Government's guidance for the consultation of Historic England and the Department for Culture, Media and Sport on proposals for development in the buffer zone of a World Heritage Site.
The appellant, Save Britain's Heritage ("Save"), appeals against the order of Patterson J., dated 15 January 2016, dismissing its claim for judicial review of the planning permission granted by the first respondent, Liverpool City Council, on 1 September 2015 for a major development of mixed uses proposed by the second respondent, Regeneration Liverpool and Neptune In Partnership Ltd., on a site in Lime Street in Liverpool city centre. Save challenged the grant of planning permission on a single ground, which was that the city council had failed to notify the Department for Culture, Media and Sport of the proposal, and thus also the World Heritage Committee of UNESCO, in breach, it said, of the World Heritage Committee's Operational Guidelines and the guidance in paragraph 18a-036 of the Planning Practice Guidance issued by the Government in March 2014. After a rolled-up hearing on 18 December 2015, Patterson J. granted permission to apply for judicial review, but dismissed the claim. I granted permission to appeal on the papers on 4 May 2016.
The city council's decision
The Liverpool – Maritime Mercantile City World Heritage Site was inscribed on the World Heritage List by UNESCO's World Heritage Committee in 2004. In 2012, in view of its "serious concern at the potential threat of the proposed development of Liverpool Waters on the Outstanding Universal Value of the property" – another proposal, unrelated to the one with which we are concerned – the World Heritage Committee decided to inscribe the World Heritage Site on the List of World Heritage in Danger.
The site of the partnership's proposed development lies within the buffer zone of the World Heritage Site. It comprises the properties at 45 and 51 to 79 Lime Street and those to the rear in Bolton Street, close to the southern boundary of the William Brown Conservation Area and several listed buildings, including the grade I listed St George's Hall and the grade II listed Lime Street Station. It is in an area designated for mixed uses in the Liverpool Unitary Development Plan.
The application for planning permission was submitted to the city council on 15 March 2015. Revisions to the proposal were made in June 2015. The proposed development would involve the demolition of a number of buildings on Lime Street, including the unlisted Futurist Cinema, and the construction of buildings of various heights for a mix of uses. The revised scheme was for a development including 3,022 square metres of commercial accommodation on the ground floor with a 101-bedroom hotel on a further three storeys facing Lime Street, and an 11-storey building fronting on to Bolton Street, which would provide residential accommodation for students, containing 412 bedrooms. The "Heritage Assessment" submitted with the application for planning permission referred to three kinds of "local view" identified in the city council's World Heritage Site Supplementary Planning Document (October 2009), including "Defined Vistas" (paragraph 7.4). It assessed the "[defined] vista from Renshaw Street/the Adelphi Hotel, looking towards St George's Hall (WHS 'Defined Vista g')" (paragraph 7.5.1). In assessing the effect of the proposed development on this view, it said that there would be a "significant impact … from the WHS defined vista g" (paragraph 7.10). But it went on to say (in paragraph 7.11):
"It is considered that the impact of the development will be beneficial to the view. The existing buildings of the terrace are in a poor state of repair and [currently] detract from the settings of the heritage assets and view of the WHS. The proposed development presents a modern façade to Lime Street, but retains storey heights which are similar to that of the existing, maintaining a framing position within the view which is secondary to the heritage assets and enhances their settings. Although the Futurist will be lost from this view, it is considered that the impact is not adverse due to the low heritage significance of the building and limited contribution to the view overall."
Historic England, when consulted on the revised scheme, did not object to it. The Victorian Society did. So did Save, in a letter dated 22 July 2015 – on the grounds of likely harm to heritage assets and to the city's historic environment. In that letter, having referred to their concern about the effects of the proposed development on listed buildings nearby, they added that "[a] further consideration must be Liverpool's World Heritage Site …, with the application site being located in the WHS buffer zone, and within viewing distance of the William Brown Street WHS area, which includes St George's Hall and Lime Street Station". They urged the city council "to refuse planning permission and work with the applicant to restore and enhance the existing buildings, and therefore enhance the WHS and surrounding heritage assets which are synonymous with the City of Liverpool".
The revised proposal came before the city council's Planning Committee on 11 August 2015. The officers' report recommended its approval, and the committee accepted that recommendation. On 14 August 2015 Save wrote to the Secretary of State for Communities and Local Government requesting him to call in the application for his own determination. On 26 August 2015 a Senior Planning Manager in the Department for Communities and Local Government, Mr Gerry Carpenter, wrote to the city council's Principal Planning Officer, Ms Barbara Kirkbride, confirming that the Secretary of State for Communities and Local Government had decided not to call the application in and was content for the city council to determine it.
The issues in the appeal
The main issue in the appeal is whether the judge was wrong to conclude that the city council was not required, in the light of the guidance in paragraph 18a-036 of the Planning Practice Guidance, to notify the Department for Culture, Media and Sport of the proposal, or at least to consider doing so.
In his skeleton argument, counsel for Save, Mr Richard Harwood Q.C., identified four questions for us. First, "[what] does the Planning Practice Guidance say about consultation with the Department for Culture, Media and Sport … and the World Heritage Committee … on applications involving World Heritage Sites and what approach is required in law to conform with this guidance" (ground 2 in the appellant's notice)? Secondly, "[did] the [city council] consider whether to refer the application to the [Department for Culture, Media and Sport] and so to the [World Heritage Committee]" (ground 1)? Thirdly, "[if] the [city council] did not consider whether to refer the application, did it reach a conclusion on the effect of the proposal on Outstanding Universal Value … which meant that referral was not expected and was such a conclusion lawful" (also ground 1)? And fourthly, "[if] the [city council] acted unlawfully, is there a sufficient reason to justify declining to quash the planning permission" (grounds 3 and 4)? The first three of those questions all go to the single main issue to which I have referred. The fourth goes to the court's discretion to withhold a remedy.
The city council's application for further evidence to be admitted in the appeal
At the hearing, Mr Anthony Crean Q.C. for the city council, relying on the principles in Ladd v Marshall [1954] 1 W.L.R. 1489, applied for permission to rely on evidence not before the judge in the court below. That application was resisted by Mr Harwood for Save. The additional evidence was in two witness statements: a witness statement of the city council's Divisional Manager for Planning and Building Control, Mr David Hughes, dated 16 June 2016, and the second witness statement of Mr Rob Burns, the city council's Urban Design and Heritage Manager, Planning and Building Control, dated 15 June 2016. Exhibited to Mr Hughes' witness statement was a copy of a letter to Mr Carpenter, dated 25 August 2015, from Historic England's Planning Director, North West, Ms Catherine Dewar, which recorded Historic England's position on the proposal, including their view on its implications for the World Heritage Site. As Mr Hughes explained in his witness statement, and this is not in dispute, the city council only became aware of the existence of that letter on 15 June 2016 – long after the hearing before Patterson J.. I accept, as Mr Crean submitted, that a copy of the letter was then obtained by the city council with reasonable diligence. And the content of the letter is clearly relevant to the main issue in the appeal. I would therefore admit it. Mr Burns' second witness statement added to the evidence already before the court on the activities of UNESCO's World Heritage Committee, and the number of...
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