Heritage Assets/Development Plan Policies

January 24th, 2019

R (Liverpool Open and Green Spaces Community Interest Company) v Liverpool City Council (2019) EWHC 55 (Admin) was two claims by the applicant community interest company (LOGS) against the grant of planning permissions by the defendant local planning authority (the LPA). The first permits relocation and laying out of a miniature railway with associated buildings and parking. The second permission is for the building of 39 new dwellings and conversion of a historic house and grounds into

12 apartments. The site for these proposed developments is an area of open land at Calderstones Park, Liverpool (the park). LOGS is concerned to prevent the developments which, it says, would unlawfully change the character of the park.The relevant areas of law were: (i) deciding upon proposals that affect heritage assets; (ii) interpretation and application of policies in a development plan; (iii) the correct approach to officers’ reports; and (iv) material mistake of fact. Kerr J summarised the law as follows:-

  1. In considering whether to grant planning permission for development which affects a listed building or its setting, the LPA must 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: Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990;
  2. Where the heritage provisions in the NPPF corresponding to the Section 66(1) duty are referred to in an officer’s report, the inference is that the officer has properly taken those paragraphs into account;
  3. However, where Section 66(1) applies, the decision maker must avoid the error of equating less than substantial harm with a limited or less than substantial objection;
  4. Considerable importance and weight must be given to the policy objective of preserving listed buildings and their settings;
  5. By Section 70(2) of the Town and Country Planning Act 1990, in dealing with an application for planning permission the LPA must have regard to the provisions of the development plan, so far as material to the application, as well as any other material considerations;
  6. By Section 38(6) of the Planning and Compulsory Purchase Act 2004, where regard must be had to the development plan, the determination must be made in accordance with the plan unless material considerations indicate otherwise;
  7. The development plan is given primacy by statute and policy;
  8. The meaning of its provisions is a question of law, not one for the LPA to determine within the limits of rationality; but many statements of policy in a development plan require exercise of planning judgment;
  9. The weight to be given to a particular material consideration is a matter for the LPA and can be challenged only if the exercise of its judgment is irrational or perverse;
  10. The meaning and effect of a policy in a development plan is different from a judgment about how, if at all, it should be applied in the context of a particular decision;
  11. The correct interpretation of policies in a development plan should not be the subject of extensive “forensic archaeology”, since the public should be able to rely on it as it stands without having to investigate its provenance and evolution;
  12. However, it is sometimes necessary to look at the forerunners of a particular provision to determine the meaning of a policy;
  13. Officers’ reports should be read with a benevolent eye, without undue rigour and avoiding the danger of excessive legalism;
  14. The question is always whether on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision and the error has gone uncorrected before the decision is made;
  15. Minor or inconsequential errors are excused; and
  16. Where it is said that a LPA has made a decision on the basis of a material error of fact, the question is whether there was a mistake as to an existing fact (including a mistake as to availability of evidence on a particular matter); the fact must be objectively verifiable; the claimant must not have been responsible for the mistake; and it must have played a material, though not necessarily decisive, part in the decision.

Comments are closed.