Save Britain's Heritage, R (on the application of) v Westminster City Council & Lord Chancellor & Anor

In listed-building control, the statutory duty to have special regard to preservation remains the governing consideration, but the decision-maker need not treat policy guidance as a mechanical checklist. Where proposed works cause substantial harm, the authority may first determine whether the proposed use or development is sufficiently necessary or desirable to justify proceeding. It must then assess whether the design achieves the minimum harm reasonably available. Judicial review is concerned with whether the correct approach was actually applied, not whether every policy document or criterion was expressly mentioned. A planning committee’s evaluative judgment on the national interest and the suitability of a site is challengeable only for legal error or irrationality.

The claimant sought judicial review of Westminster City Council’s decision granting listed-building consent and planning permission for the conversion of Middlesex Guildhall into the new Supreme Court. The building was Grade II* listed, and the proposed works would substantially alter its historically significant court interiors and Council Chamber.

The central complaint was that the Council had failed to have proper regard to government policy in PPG15, particularly its presumption in favour of preserving listed buildings and its criteria for assessing harm and community benefit. The Council and the interested parties contended that the substance of the guidance had been before the committee and had been applied.

1. Claim dismissed. Permission to proceed was granted, but the substantive claim was dismissed. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed.
2. Section 16(2) of the Planning (Listed Buildings and Conservation Areas) Act 1990 required special regard to the desirability of preserving the listed building, its setting and features of special architectural or historic interest. The same approach applied to planning permission under section 66(1).
3. PPG15 was guidance rather than a statute and was not to be applied as a rigid checklist. Its underlying purpose was to prevent unnecessary or unsuitable harm to listed buildings. National interest could justify alteration or conversion where the decision-maker was satisfied that the proposed use was necessary or desirable and that the works represented the best fit with the minimum harm reasonably achievable.
4. The committee was entitled to address the essential preliminary issue, namely whether the Guildhall was the right location for the Supreme Court. Given the acknowledged damaging impact of the works, unless that “if” question was answered affirmatively there could be no justification for the interference. The committee then considered the extent of harm, the building’s importance, the proposed mitigation and the national importance of the new court.
5. Following Oxton Farms v Selby District Council, criticism of a planning officer’s report normally warrants judicial review only where its overall effect significantly misleads the committee about material matters, or omits a material matter so that the committee fails properly to take it into account. The committee had applied the correct approach even though PPG15 was not expressly cited in the officer’s report or discussion.
6. The committee’s conclusion that this was the right location was an evaluative judgment. It disclosed no error of law and was not irrational. Leave to appeal was refused.