R Simon Shimbles v City of Bradford Metropolitan District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr,The Hon |
| Judgment Date | 08 February 2018 |
| Neutral Citation | [2018] EWHC 195 (Admin) |
| Date | 08 February 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2459/2017 |
Neutral Citation Number: [2018] EWHC 195 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Leeds Combined Court Centre,
1, Oxford Row, Leeds LS1 3BG
THE HON Mr Justice Kerr
Case No: CO/2459/2017
and
Duncan Sinclair (instructed by Richard Buxton Environmental and Public Law) for the Claimant
John Barrett (instructed by Legal and Democratic Services, City of Bradford MDC) for the Defendant
Philip Coppel QC and Jack Parker instructed via Direct Access for the First Interested Party
No appearance for the Second Interested Party
Hearing dates: 15th-16th January 2018
Introduction
On 11 April 2017, the Regulatory and Appeals Committee (the committee) of the defendant local planning authority (the LPA) approved an application for planning permission by the first interested party (the developer) to construct two plants to recover energy from waste, with associated development. One plant is intended to burn commercial waste and produce electricity from it. The other plant is for melting plastic waste and turning it into biofuel.
The claimant is a local resident and is among those who object to the application. An important historic building, East Riddlesden Hall and surrounding grounds near the application site are owned by the second interested party, which objected to the application but has taken no part in the case. The Hall is a popular venue for weddings, ideal for television period drama and was used for a film version of Wuthering Heights.
The site of East Riddlesden Hall was described in 2016 by an officer of the LPA thus:
“… a group of listed buildings located 500m north of the proposed development site. The Hall is a 17 th century gentry house listed Grade I, and is associated with a Grade I 17 th century aisled barn and other barns, outbuildings, walls, gatepiers and a mounting block all listed at Grade II. The whole assemblage is set in generally landscaped grounds, but with a more formal garden on the southern side. …. The Grade I buildings are of exceptional interest and the whole of the site is of national significance.”
There are five grounds of challenge, all permitted by Lang J to go to a full hearing. The first two relate to “heritage” issues in the relevant officer's report. It is agreed that some harm will result to the setting of East Riddlesden Hall. A chimney and sometimes a plume of vapour will be in plain sight from it. The other three grounds relate to the impact on two sites designated under EU legislation, the South Pennine Moors Special Protection Area (the SPA) and a Special Area of Conservation (SAC) known locally as Rombald's Moor.
The Law
It is agreed that section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the 1990 Act) is engaged in this case:
“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.”
It is also common ground that the National Planning Policy Framework (NPPF) section 12 entitled “Conserving and enhancing the historic environment” is also relevant. Within that section, paragraph 132 requires “great weight” to be given to the asset's conservation and makes clear that harm to the significance of a heritage asset can result from development within the asset's setting as well as by harm to the asset itself. Any harm or loss requires “clear and convincing justification”.
Substantial harm to grade II listed buildings should be “exceptional”; substantial harm to grade I and II listed buildings should be “wholly exceptional” (paragraph 132) and can only be justified (for present purposes) if outweighed by “substantial public benefits” (paragraph 133). If the harm to the significance of the heritage asset is “less than substantial”, then “this harm should be weighed against the public benefits of the proposal, including securing its [the asset's] optimum use” (paragraph 134).
Where a development proposal would affect a non-designated heritage asset, the requirement under paragraph 132 to give “great weight” to the asset's conservation does not apply but, by paragraph 135, the effect on the significance of the asset should be taken into account and in weighing such an application a “balanced judgement” is required “having regard to the scale of any harm or loss and the significance of the heritage asset”.
All the above was common ground. The parties also agreed that this was a case where the committee may be taken to have adopted the reasoning in the report of the relevant officer; that, therefore, it is that report which must be scrutinised; and that in assessing the report the court must not apply too exacting a standard to the language used and should adopt the approach of Lewison LJ in R (Palmer) v. Herefordshire Council [2017] 1 WLR 411, at paragraphs 7–8.
I also bear in mind the reasoning of Sales LJ in Jones v. Mordue [2016] 1 WLR 282, at paragraph 28: where reference is properly made to the paragraphs of the NPPF corresponding to the duty under section 66(1) of the 1990 Act, a decision maker who works through those paragraphs in accordance with their terms (or adopts the reasoning of a report writer who has done so) will, generally, have complied with the section 66(1) duty.
Reference was made at the hearing to the need for the decision maker to undertake what has been described as a weighted balancing exercise. The parties differed about the correct approach to this exercise, but agreed that the committee must not, in the context of harm to a heritage asset or its setting, merely carry out “a simple unweighted balancing exercise” (per Holgate J in R (Leckhampton Green Land Action Group Ltd) v. Tewkesbury BC [2017] EWHC 198 (Admin), [2017] Env. LR 28, at paragraph 40).
Various metaphors were used in oral argument to describe the correct way of conducting the exercise. The explanation of Lindblom J (as he then was) in R (Forge Field Society) v. Sevenoaks DC [2014] EWHC 1895 (Admin), at paragraphs 48–49, is one I find most helpful:
“48 … the duties in sections 66 and 72 of the Listed Buildings Act do not allow a local planning authority to treat the desirability of preserving the settings of listed buildings and the character and appearance of conservation areas as mere material considerations to which it can simply attach such weight as it sees fit. If there was any doubt about this before the decision in Barnwell it has now been firmly dispelled. When an authority finds that a proposed development would harm the setting of a listed building or the character or appearance of a conservation area, it must give that harm considerable importance and weight.
49 This does not mean that an authority's assessment of likely harm to the setting of a listed building or to a conservation area is other than a matter for its own planning judgment. It does not mean that the weight the authority should give to harm which it considers would be limited or less than substantial must be the same as the weight it might give to harm which would be substantial. But it is to recognize, as the Court of Appeal emphasized in Barnwell, that a finding of harm to the setting of a listed building or to a conservation area gives rise to a strong presumption against planning permission being granted. The presumption is a statutory one. It is not irrebuttable. It can be outweighed by material considerations powerful enough to do so. But an authority can only properly strike the balance between harm to a heritage asset on the one hand and planning benefits on the other if it is conscious of the statutory presumption in favour of preservation and if it demonstrably applies that presumption to the proposal it is considering.”
As to the law relevant to the third to fifth grounds, it is agreed that the LPA is the “competent authority” under the Conservation of Habitats and Species Regulations 2010 (the 2010 Regulations, mainly revoked and replaced from 30 November 2017 by 2017 Regulations of the same name), the successor to certain 1994 regulations enacted to transpose the Habitats Directive (Council Directive 92/43/EEC) into domestic law; and that the SPA and the SAC are designated “European sites” within regulation 8 of the 2010 Regulations.
Regulation 61 of the 2010 Regulations provided at the relevant time in material part as follows:
“(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—
(a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site,
must make an appropriate assessment of the implications for that site in view of that site's conservation objectives.
…
(5) In the light of the conclusions of the assessment, and subject to regulation 62 (considerations of overriding public interest), the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site …..”
Mr Sinclair, for the claimant, relied on the “precautionary principle” derived from the Habitats Directive and the 2010 Regulations and explained in the judgment of the Court of Justice in Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en...
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London Borough of Tower Hamlets v Secretary of State for Housing, Communities and Local Government
...(relying on Mansell v. Tonbridge and Malling BC [2017] EWCA Civ 1314, [2018] JPL 176 and R (Shimbles) v City of Bradford MDC [2018] EWHC 195 (Admin), [2018] Env LR 25) does not address the heritage assets context and does not extend to purely theoretical future benefits, where there is no......