Mr Justice Hickinbottom :
Introduction
- The Claimant challenges the decision of the Defendant planning authority ("the Council") of 11 August 2016 to grant the First Interested Party ("the Developer") planning permission for 90 holiday lodges, ten touring units and ten camping pods with associated infrastructure at land at Brokerswood Country Park, Brokerswood Road, Southwick, Wiltshire ("the Site") owned by the Second Interested Party. The Claimant represents an unincorporated group of local residents.
- The claim is brought with the permission of Dove J dated 28 November 2016. Before me, Peter Goatley of Counsel has appeared for the Claimant, and Toby Fisher of Counsel for the Council. I am indebted to them both.
The Site History
- The Site forms part of Brokerswood Country Park, which comprises 30 hectares of woodland at the crossroads of Brokerswood Road and Fairwood Road, Southwick. It has been operating as a visitor attraction since 1968. Adjacent to the Site, on another quadrant of that same crossroads, is the Church of All Saints, a Grade II listed building ("the Church").
- On 21 May 1998, planning permission was granted in respect of a plot of land within the park area ("the Existing Site"), abutting the north quadrant of the cross roads, for a caravan park with toilet facilities etc ("the 1998 Permission"). Condition 1 of that permission prohibited any caravan or tent remaining on the park for more than 28 days. Condition 2 restricted the number of caravans and tents to 69. Condition 4, as supplemented by specific provisions in Conditions 5 and 6, required the Existing Site to be landscaped in accordance with a landscaping scheme which was to be the subject of prior approval of the Local Planning Authority, that was subject to the following particular terms:
"The approved scheme shall be implemented in the first appropriate planting season using trees and shrubs of approved species and maintained thereafter for a period of not less than five years. Any trees and shrubs which fail within that period shall be replaced to the satisfaction of the Local Planning Authority and maintained for a further five years."
There is no evidence that any such scheme was put forward.
- The number of pitches did not remain at 69, but has rather increased to 89, by the addition of five certified pitches that can be used 365 days per year, and another 15 pitches which have in fact been in continuous use since 1968 and for which the Council accept there is deemed consent.
- From April 1968, the country park grounds were open to the general public for 364 days per year. Various facilities for visitors have been constructed over time, largely to the north of the Existing Site but on land that is under the same ownership and control, including a reception, shop, café, washing facilities, a museum building, large storage building, and a small gauge railway with track, station, shed and two platform areas. After a particularly wet summer, in January 2013, the country park was closed for a season to allow the grounds and wood to recover. From 2013, it has been closed between November and Easter. However, even when closed to the general public, the Wiltshire Outdoor Learning Team have continued to run activities in the park, including corporate programmes for larger groups, all year round; and the caravan and camping site has also remained open throughout the year.
- On 13 March 2000, further planning permission was granted in respect of the Existing Site for the development described as follows: "Landscaped earth bund, erection of boilerhouse, construction of refuse/recycling point, erection of wooden shed for electricity meters" ("the 2000 Permission"). Two plans were submitted with the application. Each showed the bund running across the Existing Site dividing the west end of the plot which is in the crossroad quadrant immediately opposite the Church ("the Western Paddock"), from the main part of the plot. One plan showed the red line application area as being restricted to the bund and the land to the east of the bund, i.e. the Existing Site excluding the Western Paddock. The other plan, dated December 1997, showed the red line application area set out in caravan/camping pitches, with various facilities including those newly proposed; and the Western Paddock as a shaded area marked as "planted with deciduous trees". The Western Paddock fell within the blue line area of land under the control of the applicant. Planning permission for the described development was granted subject to the following condition:
"To ensure a satisfactory setting for the development, the site shall be landscaped in accordance with a landscaping scheme which shall be subject to the prior approval of the Local Planning Authority…".
That condition was subject to the same particular terms as was Condition 4 of the 1998 Permission (as quoted in paragraph 4 above).
- The plan submitted with the application that led to the 2000 Permission showed the Western Paddock as a landscaped area; but there was no condition attached to the granted permission requiring that area to be landscaped, only that the development as I have described be carried out in accordance with the plan. In practice, it seems that the Western Paddock may have been used for the camping of tents, but not for caravans.
- On 16 January 2006, planning permission was granted to construct new shower facilities. The red line application area was the same as in the 2000 Permission, i.e. the Existing Site but excluding the Western Paddock.
- On 13 December 2012, permission was granted varying the condition in the 1998 Permission to allow caravans to remain over 28 days ("the 2012 Permission"). The red line application area was, once again, the same as in the 2000 Permission.
- A further application for planning permission was submitted by the Developer on 16 January 2016. This sought permission in respect of the Site, which includes not only the whole of the Existing Site but also a significant area to the north of it. The proposal includes replacing the 89 pitches with 90 holiday lodges, ten touring caravan units and ten camping pods; and removing some of the existing facilities in that area, such as the museum and storage buildings, and the entire railway, to allow for the construction of the new lodges. Although, once installed, there is no intention of moving the lodges around the Site, it is uncontroversial that they fall within the definition of "caravan" under section 29(1) of the Caravan Sites and Control of Development Act 1960 as amended by section 13(1) of the Caravan Sites Act 1968, which is based upon the capability of being moved. Subject to a submission of Mr Goatley to which I shall shortly come, there is therefore no change of use so far as the Existing Site is concerned; but there is, of course, a change of use in respect of the extended area.
- The application was due to come before the Council's Western Area Planning Committee ("the Committee") on 29 June 2016; but consideration of the application was deferred pending further officer advice regarding traffic and highways. It came before the Committee for determination at its meeting on 10 August 2016. The Committee had the benefit of (i) a site visit the day of the meeting, (ii) a Landscape and Visual Impact Assessment ("LVIA") dated January 2016, (iii) an officer's report published on 1 August 2016, recommending approval ("the Officer's Report"), (iv) a further officer's report following additional representations from Impact Planning Services Limited on behalf of the Brokerswood Residents Group dated 3 August 2016, in the form of an Agenda Supplement ("the Agenda Supplement") and (v) a presentation (including written material) by officers to the meeting itself.
- The Committee approved the application; and formal planning permission was granted the following day, 11 August 2016. It is, of course, the decision to grant that permission that is challenged in this claim.
The Grounds of Challenge
- Mr Goatley relies upon three grounds of challenge, which for convenience I have reordered, as follows:
Ground 1: The Officer's Report materially misled Committee members in relation to the extent of the Site benefiting from existing planning permission.
Ground 2: The Officer's Report, and in its turn the Committee, misinterpreted and misapplied Core Policy 39 ("Policy CP39") of the Wiltshire Core Strategy ("the Core Strategy"), which concerns "Tourist development".
Ground 3: The Officer's Report, and in its turn the Committee, failed properly to consider and apply the statutory test required by section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Listed Buildings Act") and paragraph 134 of the National Planning Policy Framework ("the NPPF") in relation to the setting of the Church.
The Relevant Legal Principles
- Before I deal with those grounds, it will help if I briefly cover the relevant overarching legal principles relevant to the proper approach of local planning authorities to the determination of planning applications. These are uncontroversial, and, following the direction of Dove J so to do, have helpfully been agreed by the parties in a joint memorandum.
- The memorandum generously relies upon my summary of the principles, set out in R (Mid Counties Co-operative) v Forest of Dean District Council [2014] EWHC 3059 (Admin) at [5], which, so far as relevant to this claim, was as follows.
"(i) ….
(ii) Each local planning authority delegates its planning functions to a planning committee, which usually (as in this case) acts on the basis of information and recommendations provided by case officers in the form of a report. I considered the proper approach to such reports recently in R (Zurich Assurance Limited trading as Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin) at [15], where I summarised the relevant principles as follows:
'(i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.
(ii) When challenged, such reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole. Consequently:
'[A]n application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken' (Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ as he then was).
(iii) In construing reports, it has to be borne in mind that they are addressed to a 'knowledgeable readership', including council members 'who, by virtue of that membership, may be expected to have a substantial local and background knowledge' (R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500, per Sullivan J as he then was). That background knowledge includes 'a working knowledge of the statutory test' for determination of a planning application. (Oxton Farms, per Pill LJ).'
(iii) The assessment of how much and what information should go into a report to enable the planning committee to perform its function is itself a matter for the officers, exercising their own expert judgment (R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500 at page 509). However, of course, if the material included is insufficient to enable the committee to perform its function, or if it is misleading, the decision taken by the committee on the basis of a report may be challengeable.
(iv) Section 70(2) of the Town and Country Planning Act 1990 ('the 1990 Act') provides that, in dealing with an application for planning permission, decision-makers must have regard to the provisions of 'the development plan', as well as 'any other material consideration', i.e. any other consideration which serves a planning purpose.
(v) The development plan' sets out the local planning policy for an area, and is defined by section 38 of the Planning and Compulsory Purchase Act 2004 ('the 2004 Act') to include adopted local plans. Section 70(2) of the 1990 Act makes clear that the development plan is a material consideration; but it is more than that, because section 38(6) of the 2004 Act gives it a particular status:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Therefore, section 38(6) raises a presumption that planning decisions will be taken in accordance with the development plan, looked at as a whole; although that presumption is rebuttable by other material considerations.
(vi) Relevant central government policies are material considerations. Since March 2012, such policies have been set out mainly in the [the NPPF].
(vii) Planning decision-makers cannot have due regard to relevant policies unless they understand them. They must therefore proceed on the basis of a proper understanding of relevant policies as properly construed, the true interpretation of such policies being a matter of law for the court. Where they have misunderstood or misapplied a policy, or failed to take reasonable steps to acquaint themselves with the information that will enable them to give proper informed answers to the material questions, that may found a challenge to the resulting decision, if it is material, i.e. if their decision would or might have been different if they had properly understood and applied the guidance (Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PTSR 983 at [17]-[23] per Lord Reed).
(viii) ….
(ix) Whereas what amounts to a material consideration is a matter of law, the weight to be given to such considerations – the part any particular material consideration should play in the decision-making process, if any – is a question of planning judgment, and is a matter entirely for the planning decision maker: an application for judicial review does not provide an open opportunity for a disappointed party to contest the planning merits of a decision. The court will intervene on (and only on) conventional public law grounds, including where the authority has failed to take into account, or properly construe or apply, the relevant development plan or other material policy (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780 per Lord Hoffman). However, where the decision maker has erred in law, then, if the resultant decision is challenged, the court is entitled to intervene; and, although judicial review relief is discretionary, is usually bound to intervene unless satisfied that the decision maker would have arrived at the same result even if he had not erred."
Ground 1: Mistake of Fact
- Mr Goatley submits that the Officer's Report proceeds on the erroneous basis that the extent of the Site is the same as that in respect of which permission was previously granted. He particularly referred to the statement by the officer in the Agenda Supplement, that the "whole of the area… benefits from the 1998 planning permission" as being wrong, and materially so as it would have seriously misled the Committee members.
- There are two strands to this ground.
- First, in his skeleton argument, Mr Goatley submitted that the 2000 Permission (which applied to the Existing Site excluding the Western Paddock) "confirmed" that the Western Paddock was excluded from the 1998 "permitted site area". In his oral submissions, he clarified that submission by accepting that the 1998 and 2000 Permissions were not inconsistent; but the latter was intended to identify the landscaping scheme that was envisaged in the former, i.e. a scheme for the landscaping of the Western Paddock.
- However, whatever the intention may have been, the 2000 Permission does not provide for that. The description of the development is in terms of "Landscaped earth bund…"; and, in the condition which I have quoted (see paragraph 7 above), the reference is to "the site" being "landscaped in accordance with a landscaping scheme which shall be subject to the prior approval of the Local Planning Authority…". That cannot be a reference to the landscaping of the Western Paddock in accordance with the plan submitted with the application, because (i) "the site" here is the site as red line identified in the plan, namely the Existing Site excluding the Western Paddock; and (ii) the condition refers to a landscaping scheme "which shall be subject to the prior approval of the Local Planning Authority", i.e. something for future consideration, which excludes the plan attached which is prior dated. On its true construction, the condition in the 2000 Permission can only properly refer to the landscaping of the bund in line with the description of the proposed development, and not the landscaping of the Western Paddock. Thus, the 2000 Permission did not in any way derogate from the 1998 Permission so far as the Western Paddock is concerned.
- This was made clear in the Officer's Report; but even more abundantly so in the Agenda Supplement, which reconfirmed the position following further representations made on behalf of the Brokerswood Residents Group. As the Agenda Supplement states, the 1998 Permission "included the paddock [i.e. the Western Paddock] within the red line of the application site"; and "there are no conditions on the decision notice that preclude development on this piece of land and therefore it benefits from the development description." Thus, it is said, "the whole of the area within the red line benefits from the 1998 [Permission]". There is no real possibility that the Committee members could have been misled, or have been in any way unclear, with regard to the position as accurately set out by the officer.
- Second, Mr Goatley submitted that it was wrong to say that the "whole of the area" had the benefit of the 1998 Permission, because, whether or not the Western Paddock was included in 1998, the proposed area of development in the 2016 application extended far to the north of the Existing Site.
- However, this broader ground is, in my view, of even less moment. As Mr Fisher emphasised, the Committee members attended a site visit the day of the meeting; and, so that they were entirely clear about the current and proposed layouts, the officer's presentation to them at the meeting itself included slides of the existing and proposed layouts, including the structures that were to be removed, which have been produced in this claim. The presentation slides identified, time and time again, areas that were clearly outside the current caravan and camping park, and indeed outside the Existing Site, which would nevertheless be occupied by lodges under the proposed development. The Agenda Supplement made clear that maps were available to the Committee members, if any of them had any uncertainty. I agree with Mr Fisher's submission; the Committee members could not have been in any sensible doubt as to the extent of the proposed development compared with the extent of the current development.
- In giving permission to proceed, Dove J was, to put it mildly, neither enthusiastic nor optimistic about this ground. His caution was, in my respectful judgment, well-founded. In my view, on all that I have before me, it is not arguable that Committee members were misled, either seriously or indeed at all. Certainly, despite Mr Goatley's courageous efforts, the ground has not been made good.
Ground 2: Misinterpretation of Policy 39 of the Core Strategy
- It is not in dispute that the application for planning permission was in respect of tourist development, and therefore fell to be determined by reference to Policy CP39, which provides, under that heading, as follows.
"Within Principal Settlements and Market Towns, proposals for tourist development of an appropriate scale (including attractions and tourist accommodation) will be supported subject to a sequential assessment. Proposals for large-scale tourist development must be assessed against all the policies of this Core Strategy, including transport implications and how the proposal could assist rural regeneration and the well-being of communities.
Outside the Principal Settlements and Market Towns, tourist and visitor facilities should be located in or close to Local Service Centres or Large and Small Villages and, where practicable, be located in existing or replacement buildings. Any proposal needs to carefully consider the need to protect landscapes and environmentally sensitive sites with the objective of providing adequate facilities, enhancing enjoyment and improving the financial viability of the attraction. If new buildings are required in the countryside for tourist development, these should be directed towards the Local Service Centres and Large and Small Villages.
In exceptional cases development may be supported away from the Principal Settlements, Market Towns, Local Service Centres and Large and Small Villages where it can be demonstrated that all of the following criteria are met:
(i) There is evidence that the facilities are in conjunction with a particular countryside attraction.
(ii) No suitable alternative existing buildings or sites exist which are available for re- use.
(iii) The scale, design and use of the proposal is compatible with its wider landscape setting and would not detract from the character or appearance of the landscape or settlement and would not be detrimental to the amenities of residential areas.
(iv) The building is served by adequate access and infrastructure.
(v) The site has reasonable access to local services and a local employment base.
Extensions to existing facilities should be appropriate in scale to their location and help to ensure the future viability of the business, including farm diversification schemes.
Proposals for camping and touring caravan sites (including extensions) will be supported where they can be accommodated without adverse impact on the character and appearance of the landscape and meet criteria (iii) to (v) above."
- In response to the application for planning permission, objectors submitted that criteria (i) and (ii) should apply when assessing the proposal. The Officer's Report dealt with that contention as follows:
"Objectors to the proposed development are of opinion that criteria (i)-(ii) of CP39 should apply when assessing the proposal but these criteria only apply to new tourist facilities in the open countryside. The final paragraphs of CP39 are very clear in saying, 'Extensions to existing facilities should be appropriate in scale to their location and help to ensure the future viability of the business, including farm diversification schemes' and 'proposals for camping and touring caravan sites (including extensions) will be supported where they can be accommodated without adverse impact on the character and appearance of the landscape and meet criteria (iii) to (v) above'. This proposal as already confirmed is considered to be an extension to an existing tourist camping and caravan site/facility and therefore the criteria of (i) and (ii) do not apply."
- The Officer's Report thus treated the proposed development as an extension to existing facilities, so that criteria (i) and (ii) did not apply; which paragraph 18 of the Claimant's Statement of Facts and Grounds expressly put in issue, as being "illogical". Those grounds were essentially repeated in Mr Goatley's skeleton argument for this hearing. In paragraphs 13 and following of that skeleton argument, Mr Goatley submitted that the Officer's Report was wrong to treat the proposal as one for an extension of existing facilities because:
i) Whatever might have been the original premise for the 1998 Permission and its connection with the country park, the country park as a tourist and visitor attraction is now, in effect, to be removed by reason of the current proposal.
ii) In any event, the planning permission sought is for a change of use and not, as such, for an extension. It involves the wholesale replacement of the present use by a new use, together with permanent development.
iii) Whilst part of the Site has the benefit of an extant planning permission for caravan/camping use, not all of the Site would represent an extension.
Having wrongly concluded that the proposed development was an extension, the Officer's Report erred in not applying criteria (i) and (ii) of those set out in Policy CP39.
- The parties thus prepared on the basis that the issue turned on whether the application here was for an extension of an existing development (for which criteria (i) and (ii) would not apply), or whether it was for a new development (for which they would).
- In the event, in the course of debate, Mr Goatley withdrew reliance upon this distinction. He was right to do so: in my view, neither the officer nor, in its turn, the Committee erred in law in proceeding on the basis that the proposed development would be an extension of the existing facility.
- The granted planning permissions, notably the 1998 and the 2012 Permissions, clearly allow use as a caravan and camping site as a form of tourism development. The 1998 Permission is expressly in respect of "a caravan and camping site". The 2012 Permission expressly refers to the use of the existing Site for "the stationing of touring caravans/tourers/tents…". The 2016 application seeks authorised use "to locate 90 holiday lodges, 10 touring caravans and 10 camping pods" together with associated infrastructure. Given that holiday lodges are, by definition, "caravans" (see paragraph 11 above), in respect of the Existing Site, there is no material change of use in this regard.
- Mr Goatley submitted that there was nevertheless a change of use in respect of the Existing Site, because some visitor attractions would be removed from that part (i.e. the Existing Site) and the park would be closed to day visitors. I accept that it is proposed that the country park will change, in the sense that some (although not all) of the visitor attractions will close, and the park will close to day visitors. Furthermore, it is proposed that the caravans will have a greater degree of permanence that has to date been the case. However, as Mr Fisher submitted, the use of the Existing Site in planning terms is as a site for caravans and tents as tourist development, and the proposal is for a site for caravans (in the form of holiday lodges) and tents as tourist development but on a site comprising both the Existing Site and an additional area. It is difficult to consider this in planning terms as anything other than an extension of the existing facility. However, even if it could be argued that it might possibly be considered a change of use so far as the Existing Site area is concerned, whether the proposed changes would in fact amount to a change of use was a matter of planning judgment for the officer and then, ultimately, for the Committee. In coming to a conclusion on that issue, they would have to take into account the fact that it was proposed to make the changes that Mr Goatley relied upon, which would have been eminently clear to the officer and the Committee members. Although a matter for them, given the incidental nature of the changes when considered in the light of the authorised use for caravans and camping, it is entirely unsurprising that they considered this not to be such a change of use.
- Insofar as the suggestion that the removal of visitor attractions and closure of the park to day visitors would mount to a change of use in respect of the area of the Site outside the Existing Site, in respect of the proposed extension area, there is, of course, a change of use proposed: if there were not, then it would not be an extension in planning terms. As Mr Fisher submitted, it is inevitable that the extension of an existing facility will require a change of use for the extended area. However, the proposed change of use could not have been made clearer, from (amongst other things) the Officer's Report, the site visit and the officer's presentation to the Committee meeting.
- Ground 2, as originally put, was thus bound to fail.
- Before me, Mr Goatley recast the ground, so that it was not dependent upon the distinction between extension of the existing facility and a new facility. He submitted that the proposed development was neither within a Principal Settlement or Market Town, or located in or close to a Local Service Centre or a Large or Small Village. For the purposes of Policy CP39, it was thus an "exceptional case", which, within the policy, could only be supported if all of the criteria (i) to (v) were met. This did not fall within the category of "proposals for camping and touring caravan sites…", in respect of which only criteria (iii) to (v) applied, because the lodges proposed, although "caravans" were not "touring caravans". Therefore, whether an extension of an existing facility or not, all of the criteria (i) to (v) applied. Insofar as it was an extension, then the criteria of the penultimate paragraph also applied; but in addition to, not instead of, criteria (i) to (iii).
- Mr Fisher, with considerable force, submitted that this was a substantively new ground, for which the Claimant required permission to amend and permission to proceed. In my view, that is correct. Although paragraph 16 of the Claimant's Statement of Facts and Grounds might be wide enough to cover the ground as lately put, it was never in fact formulated as such prior to the hearing itself.
- However, Mr Fisher also made submissions on the merits. He submitted that, on its true construction, each paragraph of Policy CP39 applies different criteria to particular circumstances, on a mutually exclusive basis; so that the criteria set out in the penultimate paragraph as applying to "extensions to existing facilities…" are discrete, and do not incorporate (i) to (v) of the criteria that apply to other cases where application is made for (new) development outside the areas specified in the first two paragraphs. The same applies (he submitted) to the final paragraph so far as "proposals for camping and touring caravan sites (including extensions)…" are concerned; they too are discrete criteria that apply to such proposals although, in respect of them, criteria (iii) to (v) are expressly incorporated.
- Proceeding on the basis – now uncontested – that the proposed development was an extension of existing facilities, the Officer's Report was therefore correct to say that criteria (i) and (ii) did not apply. The only criteria in Policy CP39 that were relevant were those set out in the penultimate paragraph of that policy itself, i.e.:
"Extensions to existing facilities should be appropriate in scale to their location and help to ensure the future viability of the business, including farm diversification schemes."
- I find that submission overwhelmingly persuasive. In coming to that conclusion as to the true construction of Policy 39, I have particularly taken into account the following:
i) Although not determinative, I am persuaded by Mr Fisher that Policy CP39 is an "exception policy", which lies outside the regular policies for (e.g.) homes and employment land (see paragraph 4.25 of the Core Strategy); and for which development is said to be permitted outside the identified limits of development (Policy CP2). In my view, the broader, higher level policies are supportive of (or, at least, consistent with) the construction of Policy CP39 pressed by Mr Fisher, in the sense that the penultimate paragraph can be regarded as an exception policy (i.e. a separate or discrete policy) that is not required to meet the usual criteria (i) to (v).
ii) Criteria (i) (proposed facilities in conjunction with a particular countryside attraction) and criteria (ii) (no suitable alternative existing buildings etc) are inapt for a proposed extension of an existing facility.
iii) The particular criteria for extensions to existing facilities include appropriateness in scale to location, which at least overlaps with criteria (ii).
iv) The criteria for camping and touring caravan sites are expressly required to "meet criteria (iii) to (v)". If they were in any event required to meet those criteria, the final paragraph of the policy may have indicated no requirement to meet criteria (i) and (ii), but not a repeated requirement to meet those three criteria.
- Consequently, even if formulated earlier, I am not persuaded that Ground 2 would have been made good.
- For all of those reasons, I shall simply refuse the claim on Ground 2.
Ground 3: Misapplication of the Listed Building Provisions
- Mr Goatley submits that, when considering the impact of the proposed development on the setting of the Grade II listed Church, the Officer's report, and in its turn the Committee, failed properly to apply the relevant criteria as set out in section 66 of the Listed Building Act and paragraph 134 of the NPPF. Again, the relevant approach to these provisions is both uncontroversial and has been agreed between the parties in a joint memorandum.
- Section 66(1) requires that "special" regard must be paid to the desirability of preserving a listed building and its setting, which means that that desirability must be given "considerable importance and weight" (The Bath Society v Secretary of State for the Environment [1991] 1 WLR 1303 at page 1319, as frequently subsequently endorsed, e.g. recently in Palmer v Herefordshire Council [2016] EWCA Civ 1061, to which I was referred, at [5] per Lewison LJ). That statutory provision is reflected in paragraph 132 of the NPPF which refers to the asset's conservation being given "great weight".
- In the light of the observations of Sales LJ in Jones v Mordue [2015] EWCA Civ 1243 at [28], it is unsurprising that the focus of the Claimant's ground is on the relevant paragraphs of the NPPF, which set out how the general statutory duty as respects listed buildings in the exercise of planning functions is to be applied. Paragraphs 133 and 134 provide as follows:
"133. Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss, or all of the following apply:
- the nature of the heritage asset prevents all reasonable uses of the site; and
- no viable use of the heritage asset itself can be found in the medium term through appropriate marketing that will enable its conservation; and
- conservation by grant-funding or some form of charitable or public ownership is demonstrably not possible; and
- the harm or loss is outweighed by the benefit of bringing the site back into use.
134. 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, including securing its optimum viable use."
- Mr Goatley submitted that, where a development would have an adverse impact upon the setting of a listed building, these provisions require the relevant planning decision-maker to assess the nature of the harm, and, in particular, whether the harm would be "substantial" or less than "substantial". That is a matter of planning judgment. If the harm would be substantial, then the particularly rigorous policy criteria of paragraph 133 would have to be applied. However, even where less than substantial, the decision-maker would have to apply less rigorous, but nevertheless significant, criteria of paragraph 134. Even under paragraph 134, it is well-established that the harm is not merely a material consideration: it is a matter which, in line with the earlier authorities to which I have referred, must be given considerable importance and weight (see, e.g., Barnwell Manor Wind Farm Energy Limited v East Northamptonshire District Council [2014] EWCA Civ 137 at [22]-[23] per Sullivan LJ, and R (The Forge Field Society) v Sevenoaks District Council [2014] EWHC 1895 (Admin) at [48]-[49] per Lindblom J as he then was).
- Mr Goatley contends that the Officer's Report simply failed to grapple with, let alone determine, the issue of whether there is harm to the setting of the Church; and, if so, the nature of that harm having regard to the statutory and policy tests, but particularly those set out in paragraphs 133 and 134 of the NPPF. In particular, he submitted, the Officer's Report focused upon "substantial harm" and paragraph 133 to such an exclusory extent that the officer failed to consider whether there was harm less than substantial that would require the application of paragraph 134.
- Mr Goatley submitted, with force, that there was clear evidence of some harm: he particularly relies upon (i) the LVIA submitted by the developer, which concluded that the proposed development was likely to have a minor, but not significant, adverse impact on the Church; and (ii) the consultation response from the Council's Conservation Officer that, in his opinion, "the proposal would result in less than substantial harm to the setting of the listed building, and therefore you [i.e. those responsible for determining the planning application] must apply paragraph 134". It is clear from that passage that the Conservation Officer considered that the development would cause some, but less than substantial, harm to the Church as a listed building.
- In the final paragraph of the relevant section in the Officer's Report, the officer said that; "The Conservation Officer is of opinion that the proposal would not give rise to substantial harm to the heritage asset or its setting. The proposal is therefore considered to comply with CP58 and section 66 of the [Listed Buildings Act]" (emphasis added). Mr Goatley relies heavily upon that passage, as evidencing that the officer considered – and misled the Committee members to proceed on the basis – that, there being no substantial harm to the Church as a heritage asset, or its setting, it followed that the proposal was compliant with the relevant statutory and policy provisions. There is no analysis of, or reference to, or conclusion in respect of the evidence that the development would result in some harm to the setting of the Church.
- Thus, he submits, the Report wholly ignored paragraph 134; and failed to consider the consequences of the development causing less than substantial harm to the setting of the affected listed building. That was a fatal error.
- However, the parts of the Officer's Report upon which Mr Goatley relies have to be put into their proper context. The Report dealt with "Heritage Assets", i.e. the Church, as follows:
"The NPPF deals with determining planning applications that affect heritage assets in paragraphs 128 to 135. Paragraph 132 sets out that '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. The more important the asset, the greater the weight should be'. Significance is defined in the NPPF as 'the value of a heritage asset to this and future generations because of its heritage interest. That interest may be archaeological, architectural, artistic or historic. Significance derives not only from a heritage asset's physical presence, but also from its setting'. It goes on to note that 'significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting and notes that substantial harm to or loss of designated heritage assets of the highest significance, including SAMs and Grade I & II* Listed Buildings should be wholly exceptional'. The setting of a designated heritage asset is defined in the NPPF as 'the surroundings in which a heritage asset is experienced'.
Paragraph 133 of the NPPF goes on to note, that where a proposed development would lead to substantial harm to or total loss of significance of a designated heritage asset, consent should be refused unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh the harm or loss.
In Bedford Borough Council v Secretary of State for Communities and Local Government and NUON UK Ltd [2012] EWHC 4344 (Admin), it was accepted that substantial harm is an impact which would have such a serious effect on the significance of an asset that its significance was either removed altogether, or very much reduced.
The [Church] is located on the crossroads of Fairwood Road and Brokerswood Road and lies south west of the existing park and is Grade II Listed as confirmed on Historic England's website. It sits in the corner of a field that has mature hedging on its boundary and also has a small car park. It was listed on 14th January 2014 as it was a good example of a Gothic Revival tin tabernacle that displays a detailing above the norm for a church of this type. The listing goes onto say that the church is an increasingly uncommon ecclesiastical survivor and though typically modest, is substantially complete and retains many of its original fixtures and fittings.
The Church is therefore primarily listed for its architectural interest and rarity.
It is considered that due to existing landscaping (including the hedging on the boundaries of the Church which are outside of the applicants control) and the proposed robust planting on the site subject of this application, the proposal of which some lodges would be visible would not harm the significance of this heritage asset as it will be retained and will not be altered.
The Conservation Officer is of the opinion that the proposal would not give rise to substantial harm to the heritage assets or its setting The proposal is therefore considered to comply with CP58 and Section 66 of the of the Planning (Listed Buildings and Conservation Areas) Act 1990."
- Again, no doubt, with the benefit of hindsight, this passage – and, notably, the final paragraph – could have been drafted differently, and even better; but, in my view, it is tolerably clear as it stands.
- The officer referred to the whole of the relevant section of the NPPF, i.e. paragraphs 128-135. From the early parts of the passage I have quoted, she clearly understood the importance of considering the impact of the development in context, i.e. the impact of the development on the significance of any heritage asset. She also noted that the Church is listed, primarily, for its architectural interest and rarity. She then goes on to say that she considers that, due to existing and proposed future landscaping, "the proposal of which some lodges would be visible would not harm the significance of this heritage asset as it will be retained and will not be altered" (emphasis added). Mr Goatley submitted that the italicised "it" refers to "heritage asset"; but, in my view, when seen in its full context, I agree with Mr Fisher that it rather refers back to "the significance". The officer concluded that, in her view, the significance of the heritage asset would be retained and would not be altered. That, in effect, amounted to a conclusion that the proposed development would result in no harm to the setting of the Church. That is reiterated in the conclusion section of the Officer's Report (Section 10), where it is said:
"The proposal would not impact upon neighbouring amenity sufficient to warrant a refusal reason and would not harm the setting of the nearby Grade II Listed Building or wider landscape" (emphasis added).
- In my view, that is sensibly clear as to the officer's opinion, i.e. that the development would have no detrimental effect on the setting of the Church. She was (and the Committee were) entitled to reach a different conclusion from that of the Conservation Officer (see, e.g., Palmer). That was a conclusion that is not entirely surprising given that the Conservation Officer only put the harm "at the minor end of the scale"; and, in relation to setting, considered that "even if the southerly edges could be seen from the crossroads area they would not compromise the special interest of the listed building".
- I do not consider that the Officer's Report in any way misled the Committee members on this issue. I accept that the Report did not expressly refer to the evidence of the Conservation Officer that it would cause some such harm; and I accept that the final paragraph of the section which I have quoted, if read alone, might well be construed as Mr Goatley would have the entire report on this issue construed, because of the causative implication of the word "therefore". However, the law does not require an officer's report to be perfect: it requires it to be "clear and full enough to enable the [Committee members] to understand the issues and make up their minds" in an appropriately informed way (Morge v Hampshire County Council [2011] UKSC 2 at [36] per Baroness Hale). In my judgment, in this case, the Officer's Report was not legally deficient: it was adequately clear and full enough on this issue. The Report did not misrepresent the Conservation Officer's opinion, but rather summarised it, as the planning officer was entitled to do. The Committee members of course had available (e.g.) the Conservation Officer's report, if they laboured under any lack of clarity or doubt.
- I therefore conclude that Mr Fisher's submission, that this ground relies upon an impermissibly forensic approach to the Officer's Report, is sound. Read fairly and as a whole, as it must be, I have concluded that the Officer's Report permits no forensic doubt that it was the officer's opinion that there would be no harm to the significance of the heritage asset, a conclusion to which she was entitled to come, and the Committee was entitled to adopt. On the basis of that conclusion, there was no room for the application of paragraph 134 of the NPPF.
- Ground 3 also therefore fails.
Conclusion
- For the reasons I have given, despite Mr Goatley's efforts, none of the grounds is made good. The claim is dismissed.
