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Parish council fails in judicial review of assessment by planning officer of impact of 400-dwelling scheme on church

A parish council has failed in a High Court challenge to a decision by the development control committee at Arun District Council to grant outline permission for the development of a portion of land allocated for up to 400 dwellings.

The site at the centre of Pagham Parish Council v Arun District Council [2019] EWHC 1721 was within Strategic Policy H SP2a Arun Local Plan 2011-2031 and known as "SDI Pagham South". The committee’s decision was taken in November 2018.

The site, formerly agricultural land, lies to the north east of the historic core of Pagham, a large and expanding village on the coast of West Sussex, and to the west of the neighbouring village of Nyetimber.

At the meeting, the committee received a 52-page report prepared by one of its planning officers, who recommended that permission be granted subject to conditions. That recommendation was adopted.

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At issue in the case before Mrs Justice Andrews was the planning officer's assessment of the impact that the development would have on the setting of Pagham's medieval Grade 1 listed Thomas à Becket church, which lies to the south west of the site.

In his report the planning officer referred amongst other things to a number of listed buildings situated within close proximity to the site includign the church. He considered the impact that the proposed development would have on each of these buildings and/or their settings. He also summarised the views of Historic England, the statutory consultee, (who had not objected), and correctly informed the committee that the Arun's conservation officer had raised no objection.

The planning officer’s conclusions were: "Therefore, it is considered that the proposed development will preserve the setting of listed buildings surrounding the site and as such would accord with policies HER SP1, HER DM1 and HER DM4 of the Arun local plan."

He added: "It should also be considered that the proposed development makes a significant contribution to the Local Planning Authorities housing land supply and is an allocated site within the Arun Local Plan. Therefore, it is considered that the public benefits of the development would outweigh any harm to the setting or significance of heritage assets in accordance with paragraphs 196 and 197 of the NPPF".

The parish council accepted that the decision to grant planning permission was one which a reasonable local planning authority, properly directing itself, would be entitled to reach. However, it claimed judicial review of the decision on two grounds, namely:

  1. The committee failed to have regard to the duty under s.66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990;
  2. The planning officer materially misled the committee by inadequately summarising the views of Historic England.

Mrs Justice Andrews said the question for the Court was whether the substance of the report had sufficiently drawn the committee's attention to the proper approach required by the law, and material considerations. “In this case, on a fair reading of the report, taken as a whole, that is precisely what the planning officer did.”

On ground 1, the judge said: “The planning officer did not mislead the Committee, let alone mislead it in any material respect. He made it clear that there was an HIA [Heritage Impact Assessment] and that it had been considered, and that the applicant/its consultant accepted that the proposed development would have some impact on the views of the Church from the wider countryside, specifically the footpath, but that impact was not significant or substantial.

“That was true. It was all he needed to say. He was under no obligation to say that the consultant had identified something which could be regarded as minor harm to the vistas from a different perspective but that he, the officer, disagreed with that assessment.”

The judge continued: “The officer then said that he considered the development would preserve the setting of all the listed buildings in the vicinity. He furnished the Committee with all the information he rationally considered would help them to decide whether they agreed or disagreed with that assessment. It was not materially misleading for the planning officer to omit the consultant's opinions on harm, on how the duty under s.66(1) should be approached, and on how the planning judgment should be exercised.

“But even if I am wrong, and what the planning officer said may have given a misleading impression that the author of the HIA had suggested that there would be no harm to the wider setting of the Church, when he actually thought there could be some very limited harm, that did not matter, because the planning officer took a different view on a matter of planning judgment, and that view was rational.”

Mrs Justice Andrew said that the local planning authority “did discharge its duty under s.66(1) because it accepted that there was no relevant harm to weigh in the balance. On the basis of the material before him, having taken all relevant information into account, the planning officer was entitled to so advise the Committee.

“There is no basis for challenging his report on the basis of a failure to give express reasons for disagreeing with the consultant, let alone a failure to set out the consultant's views on ‘harm’ which he did not accept. This was a value judgment which was entirely a matter for him. Ground 1 of this claim for judicial review is fundamentally misconceived and must fail.”

Ground 2 was a complaint that the committee was materially misled by the omission from the officer's report of an observation in a letter from an Assistant Inspector at Heritage England that she walked across footpath 101, which crosses the application site, and where there are views to the church tower, providing a local landmark within the open farmland.

Mrs Justice Andrews described the submission that the omission could have misled anyone as “simply untenable”.

She said: “The officer's report made it plain that the views from the north over the open fields, including from the footpath, made a positive contribution to the setting of the Church. The members of the Committee, with their local knowledge, probably did not need to be told that.

“Nevertheless, the planning officer quoted verbatim from what Ms Howell [the inspector] had said about the open fields to the north and west contributing positively to the setting of the church and the historic core of Pagham. Insofar as complaint is made that he did not specifically attribute that quote to Historic England, I reject it as the type of semantic analysis of a planning officer's report which this Court and the Higher Courts have gone to great pains to try and stamp out.”

The judge added: “What matters is that the planning officer acknowledged without demur the positive contribution of the views of the Church tower from the north (and west) when making his assessment of whether the proposed development would preserve the setting of the Church. It does not matter whether the source of the information about that positive contribution was the HIA, Historic England or his own knowledge of the area. This matter was never in dispute.”

Mrs Justice Andrews went on to say that the committee “could not have been left in any doubt” as to the importance of the view from footpath 101 to the setting of the Church. “The Committee would have been given the impression that Historic England did not raise any specific objection to the development, and that was true.”

The judge added that even if she had been persuaded that the decision was susceptible to judicial review, she would have refused any relief as a matter of discretion pursuant to s.31(2A).

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