Court quashes grant of planning permission for 73 homes after "misleading" officer’s reports

A High Court judge has quashed the grant of planning permission for 73 dwellings near a heritage asset in Surrey because a planning officer's reports “seriously and materially” misled the council’s planning committee.

The case of Wyeth-Price, R (On the Application Of) v Guildford Borough Council [2020] EWHC 3355 concerned a site at Ash Manor, Ash Green, Guildford ("the Site").

The claimant was a local resident and formerly the Chair of the Ash Green Residents' Association. The Interested Party, Bewley Homes, was the developer of the Site and made the application for planning permission.

The Site forms part of a strategic allocation within Guildford’s "Local Plan: Strategy and Sites (2015-2034)" which was adopted on 25 April 2019. It is 3.87 hectares in size, and it is currently laid to grass. There is a large pond on the northern boundary of the Site.

Adjacent to the Site, near the pond, there is a small complex of historic buildings and farm structures, known as Ash Manor. The largest building within the complex is Grade II* listed and has been converted into two residential dwellings. Other dwellings nearby are Grade II listed.

According to Historic England, the current agricultural and open character of the setting of Ash Manor is one that has remained constant through its history. It advised that the proposed development would cause harm to the setting of the heritage assets, assessed at less than substantial harm.

Two previous applications for planning permission for large residential developments at the Site had been unsuccessful. There were several iterations of the proposals in this application as Bewley Homes made amendments in an effort to address the concerns which had been raised, by consultees and objectors.

The planning officer's report recommended the grant of planning permission. However, the planning committee, at its meeting of 9 October 2019, deferred a decision in order to make a Site visit, "owing to the sensitivity of the site, the lack of coalescence with the village green, the proximity of the proposed development to significant heritage assets and the associated harm caused, the layout of the site and the mix of market housing which currently offered no one-bed houses". The Site visit took place on 3 December 2019.

At its meeting on 4 December 2019, the Planning Committee was provided with a further report from the planning officer and some updating sheets. The further report advised, among other matters, that the scheme had now been reduced from 77 to 73 units; the open space buffer between the development and Ash Manor had been increased by 6 metres; and the apartment blocks had been reduced to two storeys from three. The planning officer considered the amendments were an improvement, and recommended that permission should be granted.

The planning committee noted the amendments to the scheme and decided to grant planning permission, stating: "The Committee considered the application and agreed that the overall layout and reduction in the number of residential units proposed onsite represented a significant improvement. The new scheme had been reduced both in size and bulk and was more in keeping with the character of the surrounding area, enabling resident's [sic] greater enjoyment of their amenities."

Numerous objections were received about the proposed development. Objections about the impact of the scheme on Ash Manor were received from, among others, local residents, the Ash Green Residents Association, the Parish Council and the MP for Surrey Heath, who said his constituents had raised profound concerns about the impact on Ash Manor.

Ms Wyeth-Price advanced three grounds of challenge. The first was that Guildford had failed to apply section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (PLBCAA 1990), which states that “In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall 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”.

It was also argued that the council had failed to take account of paragraphs 193 and 194 of the National Planning Policy Framework considering potential impacts on designated heritage assets.

"Considering potential impacts

193. 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 (and the more important the asset, the greater the weight should be). This is irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to its significance.

194. Any harm to, or loss of, the significance of a designated heritage asset (from its alteration or destruction, or from development within its setting), should require clear and convincing justification. Substantial harm to or loss of:

a) grade II listed buildings, or grade II registered parks or gardens, should be exceptional;

b) assets of the highest significance, notably scheduled monuments, protected wreck sites, registered battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites, should be wholly exceptional.

The claimant also argued:

• Guildford failed to have regard to a relevant consideration, namely, the advice of Surrey Wildlife Trust in respect of a veteran tree at the Site, and acted irrationally in departing from the advice without reasons. (Ground 2)
• The council failed to have regard to material considerations concerning flooding at the Site and/or acted irrationally by ignoring expert evidence on this matter. (Ground 3)

Mrs Justice Lang rejected grounds 2 and 3 but said ground 1 succeeded.

She found that the planning officer's reports did seriously and materially mislead the planning committee, for these reasons:

• The planning officer expressly referred to the duty under section 66(1) PLBCAA 1990, both in his advice on the statutory framework and at the critical stage of the balancing exercise. “However, he did not advise members on how they were required to apply the section 66(1) duty to the balancing exercise. The application of the section 66(1) duty is not explicitly clear from the wording of section 66(1), as demonstrated by the fact that it was only after the case of Barnwell that it was fully appreciated by experienced planning inspectors and lawyers that section 66(1) imposed a duty to treat a finding of harm to a listed building as a consideration to which the decision-maker must give ‘considerable importance and weight’ when carrying out the balancing exercise and that it was not open to the decision-maker merely to give the harm such weight as he thinks fit, in the exercise of his planning judgment." [Paragraph 37]
• In relation to whether it could be inferred that the planning officer in this case took into account paragraphs 193 and 194 of the Framework in the balancing exercise he conducted in his report and thereby enabled members of the planning committee to take them into account, there were several positive indications to the contrary, giving rise to a substantial doubt as to whether the duty was performed. [Paragraph 41]
• The 4 December 2019 report “repeated the error of advising members to undertake an untilted balancing exercise, weighing the less than substantial harm to the heritage assets against the public benefits of the proposal without apparently taking into account the requirement to accord ‘considerable importance and weight’ to a finding of harm to a listed building and ‘great weight’ to the asset's conservation, as a Grade II* listed building, and the need for a ‘clear and convincing justification’ for any harm.” [Paragraph 52]

Mrs Justice Lang said: “The 2017 report provides a useful illustration of the advice which should have been given on this occasion, but was not given, either expressly or impliedly. I am satisfied, on the balance of probabilities, that the Planning Committee could have reached a different decision if they had been properly advised.

“It is apparent from the minutes of the meeting on 9 October 2019 that, despite the planning officer's wholehearted recommendation for approval in the report, the Planning Committee was not convinced that permission should be granted for a number of reasons, including the sensitivity of the Site and the impact on the setting of the heritage assets.

“Although the Planning Committee granted planning permission at the meeting of 4 December 2019, on the recommendation of the planning officer, its decision to do so was made in the face of strong objections from the local MP on behalf of constituents, local residents and the Parish Council. Historic England considered that the harm to the setting of the heritage assets remained, despite the amendments to the scheme. This was clearly a contentious application, which had been rejected on two previous occasions. For these reasons, I consider that the weight which the Planning Committee accorded to the impact on the heritage assets in the balancing exercise could have affected the outcome.”

The judge said that, for the same reasons, she was not persuaded that this was a case in which relief should be refused under section 31(2A) of the Senior Courts Act 1981, as it did not appear to her to be highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred.