Safe Rottingdean Ltd v Brighton and Hove City Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeSir Duncan Ouseley
Judgment Date08 October 2019
Neutral Citation[2019] EWHC 2632 (Admin)
Docket NumberCase No: CO/1166/2019

[2019] EWHC 2632 (Admin)





Royal Courts of Justice

Strand, London, WC2A 2LL


Sir Duncan Ouseley

Sitting as a High Court Judge

Case No: CO/1166/2019

Safe Rottingdean Ltd
Brighton and Hove City Council


Fairfax Acquisitions Ltd
Grange Management (Southern) Ltd
Cothill Trust
Interested Parties

Andrew Parkinson (instructed by DMH Stallard LLP) for the Claimant

Jacqueline Lean (instructed by the Solicitor to the City Council) for the Defendant

Christopher Katkowski QC and Richard Turney (instructed by Trowers and Hamlins LLP) for the First Interested Party

Hearing dates: 23 July 2019

Approved Judgment

Sir Duncan Ouseley

On 8 February 2019, Brighton and Hove City Council granted permission for a residential development of 93 houses, and associated facilities, at the site of the former St Aubyn's School, on the east side of the High Street in Rottingdean. The school, which closed in 2013, is located within the Rottingdean Conservation Area, but its 2.5 hectares of playing fields are outside it, lying on the other side of a path known as the Twitten which marks the Conservation Area boundary. The main school building and its adjoining chapel are Grade II listed buildings. The school site also contains a number of other buildings.


After an earlier application for permission for a residential development by Linden Homes, Linden, had been refused in April 2016, along with listed building consent applications, a further application for full planning permission was submitted in August 2017, along with a listed building consent application, after consultation with the City Council. On 10 October 2018, the Planning Committee considered the lengthy Officer's Report, OR, which recommended that planning permission be granted. It accepted the recommendation by 9 votes to 1, subject to the Secretary of State not calling in the application, and to the conclusion of an agreement under s106 of the Town and Country Planning Act 1990. The listed building consent application was approved unanimously, and is not directly controversial in these proceedings. The application was not called in. Planning permission was granted following the conclusion of the s106 agreement.


Safe Rottingdean Ltd is a vehicle for representing a community group established to protect Rottingdean, and its environs, from development to which it is opposed. The group objected to this proposal.


It challenges the grant of permission by way of judicial review, on the grounds that the OR significantly misled the Planning Committee (i) because it failed to advise the Committee that the application breached policies HE3 and HE6 of the Brighton and Hove Local Plan 2005, the LP; (ii) because it failed to consider and inform the Committee of paragraph 193 of the National Planning Policy Framework, the Framework, which deals with the weight to be given to the impact of development on designated heritage assets, or of ss66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, the Listed Buildings Act; and (iii) because it failed to apply s38(6) of the Planning and Compulsory Purchase Act 2004, the 2004 Act, which requires decisions to be made in accordance with the development plan unless material considerations indicate otherwise.

The background to the application


The background to the Committee's consideration of the application in October 2018 is important. The closure of the school in 2013 left substantial listed buildings, adjoining the High Street, in the Rottingdean Conservation Area, unused and unmaintained. The City Council approved a development brief in 2015, placing the site at the heart of historic Rottingdean. Most of the school buildings lie on the High Street side of the Twitten; those few outside the Conservation Area on the other side of the Twitten relate to the use of the playing fields, principally the pavilion. The playing fields were however regarded as part of the curtilage of the listed buildings, and all those buildings within the curtilage were treated as “curtilage listed.” These included the pavilion, the flint walls, war memorial and a terrace of cottages. The playing fields in particular, though surrounded by residential development of varying types, formed a significant green space seen as part of the setting of the Conservation Area, and important in strategic views of the village, notably from Beacon Hill.


The first development proposed by Fairfax was refused on many grounds covering both the planning application and the listed building application. What was to happen to the site was already locally controversial. There followed extensive discussions between officers and Fairfax, before the submission of the further applications with which this case is concerned. The applications themselves were then the subject of lengthy discussions, and public consultation, before the OR was presented to the Planning Committee.


The actual application was far from a simple residential proposal; it was for a package of residential development and measures to restore and reuse most of the listed buildings. There were to be 93 new dwellings including 29 on the main school building site, referred to as the campus, and 52 on the playing field, covering 1.1 of their 2.5 hectares. The rest of the playing field was to be retained as open space. Field House, the principal listed building on the campus, and part of its northern extension, were to be converted to residential use to provide 8 flats. The existing terraced cottages and a dwelling called Rumneys were to be altered to provide 4 dwellings. 40% of the dwellings were to be affordable, (a figure greater than originally proposed in the second application), with a tenure split of 55% social rented and 45% intermediate housing. The existing sports pavilion, war memorial, water fountain and chapel were to be retained, but all the other school buildings were to be demolished. There would be new access points, refuse facilities, alterations to the boundary flint wall along Steyning Road and the Twitten, and other associated works.

The Officer's Report and the Planning Committee meeting


The OR described the site, and the listed and “curtilage” listed buildings, i.e. those treated as listed because they were in the curtilage of a listed building. The description included this at [2.6]:

“The school campus site is located within the Rottingdean Conservation Area, the boundary of which runs along the eastern side of the Twitten and therefore excludes the playing field. Nevertheless the playing field is considered an important part of the setting of the Conservation Area; it provides a reminder of the once rural setting of the village and a distinction between the historic village and surrounding suburban development. The Twitten is identified as an important spatial feature in the Conservation Area; it is bounded by hedge to one side and a flint wall to the other. The flint wall to Steyning Road, as well as being curtilage listed, is an important part of the character of the Conservation Area as it helps to delineate the boundary to the school site as well as differentiate public and private space.”


The account of the planning history set out the principal grounds on which planning permission and listed building consent had been refused on the previous application; they included the absence of any affordable housing, the provision of insufficient information for assessing the significance of the listed buildings and alterations proposed to them, harm to the listed buildings and harm to the character and appearance of the Conservation Area and its setting.


Subsequently, there had been pre-application discussions, consultation with various bodies including local action groups, and a members' pre-application briefing.


After describing the application, the various consultation responses, including from Historic England, and objections, including those in effect from the supporters of the Claimant, were summarised. The City Council's Heritage Officer commented that the principle of bringing the vacant listed building and associated structures back into long-term use was very welcome and that residential use was compatible with their conservation; the main school building had originally been a house. This was a “great heritage benefit.” The extent of demolition was justified and would retain most parts of the principal building and curtilage structures of the greatest significance. The internal alterations would restore much of the original plan form and important internal features and fixtures of the principal original building.


The new development on the campus site “would provide a very clear enhancement to the appearance and character of the conservation area over the existing ad-hoc collection of poor quality late 20 th century buildings, and subject to revised details…is considered to be entirely sympathetic to the Conservation Area.”


However, he was also of the view that the development of the southern part of the playing field site:

“would cause clear harm to the setting of the Conservation Area, and to a lesser degree to the setting of the principal listed building. This harm particularly arises from the visible reduction of the ‘green lung’ between the conservation area and the later suburban development…which is important to the setting of the conservation area is identified in the Character Statement. This harm would be notable but would be less than substantial under the terms of the NPPF. This degree of harm has not been justified in terms of viability.”


Housing Strategy had said, in response to the application, that it was proposed that only 31% of the housing would be affordable, below the 40% sought by policy. “However, documents...

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3 cases
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    • Court of Appeal
    • 9 March 2021
    ...(paragraph 121). 70 Mr Strachan repeated the same argument before us. Relying on the first instance decision in Safe Rottingdean v Brighton and Hove City Council [2019] EWHC 2632 (Admin), he submitted that the Palmer “principle” applies both to the statutory obligation in section 66(1) and......
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    • Queen's Bench Division (Administrative Court)
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    ...need to refer to three authorities. First, R (Safe Rottingdean Ltd) v Brighton and Hove City Council, and Fairfax Acquisitions Ltd [2019] EWHC 2632 (Admin), a decision of mine. The issue in that case concerned the interpretation of policies in the Local Plan which dealt with listed buildin......
  • City & Country Bramshill Ltd v Secretary of State for Housing, Communities and Local Government
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    • Queen's Bench Division (Administrative Court)
    • 14 November 2019
    ...way to conduct the exercise has in my view now been put beyond doubt by the recent decision of Sir Duncan Ouseley in Safe Rottingdean v Brighton and Hove City Council [2019] EWHC 2632 (Admin). In that case, the Planning Officer had considered local policies akin to CON 12 and 17 but also t......

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