District council defeats second judicial review challenge over multi-storey car park development

A district council has successfully defended the grant of planning permission to itself for a multi-storey car park and other development on land in a conservation area, having previously lost an earlier judicial review challenge over a similar development.

The claimant in Risby v East Hertfordshire District Council & Ors [2019] EWHC 3474 (Admin) lives near the site of the proposed development to the north of Bishop’s Stortford town centre. At present it is used as a surface level public car park and as an area of green open space.

He alleged that:

• East Herts failed to take into account in granting this planning permission that it had previously found in its grant of an earlier planning permission that had now been quashed by an order of the court for a very similar development that there would be harm caused to the conservation area by that development (Ground 1(a));
• There were no or no adequate reasons given for this change of view (Ground 1(b)) and
• Members of the council were misdirected by officers on this issue of harm to the conservation area and in particular that the officers failed to advise the members that any balancing of harm to the conservation area with the public benefits of the proposal had to be a weighted one with the starting point being a presumption against the grant of planning permission (Ground 2).

However, Rhodri Price Lewis QC, sitting as a Deputy High Court Judge, rejected the claim.

He said it was clear from passages from an officer’s report (OR2) that the case officer understood the reasons why the earlier grant of planning permission was quashed by consent order and they were put before members.

“[The case officer] understood too that special consideration had to be given to the matters contained in that order and that members needed to take into account as an ‘Essential Reference Paper’ the OR1 that had contained the advice which had led to the quashing of the earlier grant of permission.”

Judge Price Lewis added: “In my judgment that is adequate consideration of the fact and nature of the advice that had led to the quashing of the earlier grant of planning permission.”

The judge also said there was no obligation on the council to maintain any view previously expressed in the OR1 which had led to the quashing of the grant of planning permission. “The members had their attention drawn to that earlier advice in OR2 by its inclusion as an ‘Essential Reference Paper’, they were the same members all but one, who had received that advice and they had available to them two new assessments on heritage which the OR2 addressed. The case officer gave a reasoned explanation of why he reached his judgment and why he differed from the Conservation and Urban Design Advisor's view.

“In my judgment that was a lawful consideration of the amended application in the circumstances here.”

On ground 1(b) the judge said adequate and intelligible reasons had been given as to why the officers were advising that there would be no harm caused to the character and appearance of the conservation area from the amended proposals. They relied particularly on two new assessments, and the members to whom these assessments were available knew that they were not available at the time of the original determination.

Judge Price Lewis said: “It my judgment it was not necessary for the Council to go further and seek to unpick the earlier advice in OR1 and seek to explain why the view they now adopted was being taken. They did address why they differed from the observations and conclusions of the Conservation and Design Advisor which had been at the initial determination and had remained at the redetermination that there would be less than substantial harm caused to the character and appearance of the conservation area from the proposed multi-storey car park. OR2 explains why a different view was taken by officers in that report. The officers at the meeting reiterated and expanded upon those reasons as the transcript shows.”

The judge also rejected ground 2, saying it was clear that in OR2 the members were given clear and accurate guidance on the nature of the duty under section 72(1) of the Planning (Listed Building and Conservation Areas) Act 1990 including the requirement that considerable importance and weight had to be given to any harm to the conservation area.

Members had also been reminded of this accurate advice at the meeting by a councillor who was an objector and not a member of the committee.

Judge Price Lewis said it was “not credible” that members should have forgotten or ignored that advice that they had in the report before them and which was also set out in the Built Heritage Assessment that was on the council's website and available to them.

“I am satisfied that when determining this application members understood full well the nature of the duty under section 72(1). Nothing that was said at the meeting about the balance of harm to a conservation area against the public benefits was said so as to contradict or undermine the clear advice in the written OR2 that members had before them,” he added.