Listed Buildings/ Reasons

November 7th, 2016 by James Goudie KC

A LPA has a duty under Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have “special” regard to the desirability of preserving the listed building and its setting. In Palmer v Hertfordshire Council (2016) EWCA Civ 1061 the Court of Appeal held, consistently with paragraphs 132 and 136 of the NPPF, that (i) the concept of preserving the listed building or its setting means “doing no harm”, (ii) that could include not only encroachment or visual intrusion but also noise and smell, and (iii) if there is harm that must be given considerable importance and weight, but (iv) the weight to be given is not uniform and will depend on, amongst other things, the extent of the assessed harm and the heritage value of the asset in question, (v) the degree of harm and appropriate mitigation measures are a matter for the judgment of the LPA, and (vi) the existence of the statutory duty does not alter the approach that the Court should take to an examination of the reasons for the decision given by the decision maker.  The Court of Appeal upheld a grant of permission for poultry boiler units to be erected close to a disused railway station, that is a Grade II listed building.  The Court at paragraphs 7 and 8 set out the approach to the examination of reasons and to the reading of an officer’s report, as follows:-

“7.      The existence of the statutory duty under section 66(1) does not alter the approach that the court takes to an examination of the reasons for the decision given by the decision maker: Jones v Mordue [2015] EWCA Civ 1243; [2016] 1 WLR 2682. It is not for the decision maker to demonstrate positively that he has complied with that duty: it is for the challenger to demonstrate that at the very least there is substantial doubt whether he has. Where the decision maker refers to the statutory duty, the relevant parts of the NPPF and any relevant policies in the development plan there is an inference that he has complied with it, absent some positive indication to the contrary: Jones v Mordue at [28]. In examining the reasons given by a local planning authority for a decision, it is a reasonable inference that, in the absence of contrary evidence, they accepted the reasoning of an officer’s report, at all events where they follow the officer’s recommendation: R (Fabre) v Mendip DC (2000) 80 P&CR 500, 511; R (Zurich Assurance Ltd) v North Lincolnshire Council [2012] EWHC 3708 at [15].

8.        In reading an officer’s report, the court must not impose too demanding a standard: R (Morge) v Hampshire County Council [2011] UKSC 2, [2011] 1 WLR 268 at [36]. Such reports are addressed to a knowledgeable readership including members of the planning committee who, by virtue of that membership, may be expected to have substantial local and background knowledge. That background knowledge includes a working knowledge of the statutory test for determination of a planning application: R (Zurich Assurance Ltd) v North Lincolnshire Council at [15]. Where a claim for judicial review is based on alleged deficiencies in an officer’s report to the planning committee it normally needs to be shown that the overall effect of the report significantly misleads the committee about material matters which remain uncorrected at the meeting of the planning committee before the relevant decision is taken: Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997). The ultimate test is whether the reasons enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues. The reasoning must not give rise to a substantial doubt (as opposed to what has been called a “forensic doubt”) as to whether the decision maker erred in law, although such an inference will not be readily drawn: South Bucks DC v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 at [36].”


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