Garner & Ors v Elmbridge Borough Council & Ors

Under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, preservation of a listed building’s setting is presumptively desirable. A development preserves the setting if it leaves it unharmed. If there is harm, sufficiently strong countervailing merits are required.

The statutory duty need not be recited in the decision, provided it was in fact performed. Planning reasons must be read in their full planning context, including an officer’s report. They need not follow a prescribed sequence or give reasons for every reason. A planning authority may rely on a specialist consultee’s expertise where its response is properly understood as not identifying material heritage harm.

The appellants challenged Elmbridge Borough Council’s grant of planning permission for comprehensive redevelopment at Hampton Court railway station, including a hotel on the former Jolly Boatman site opposite Hampton Court Palace.

They contended that the council had failed to give special regard to preserving the Palace’s setting and that its summary reasons for permission were inadequate. Ouseley J dismissed the judicial-review application: [2011] EWHC 86 (Admin). Permission to appeal was granted on those two grounds.

The central questions were whether the council had misunderstood English Heritage’s response to the redesigned hotel, and whether the reasons disclosed a lawful basis for granting permission under section 66(1).

1. Appeal dismissed unanimously. Sullivan LJ, with whom Toulson and Pill LJJ agreed, held that the council had in fact given the Palace’s setting the special regard required by section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.

2. Following the approach accepted in [1992] AC 141, preservation is not merely an ordinary material consideration. A development which leaves a listed building’s setting unharmed preserves it. If there is harm, the merits favouring permission must be sufficiently strong to outweigh it. The absence of an express recital of section 66(1) was not fatal; the question was whether the duty had actually been performed.

3. The planning history showed that preserving the Palace’s setting was a key consideration. English Heritage’s formal response had to be read as a whole and in the practical context of consultation on a planning application. It supported a landscaped park as the preferable solution, objected to the boathouse scheme, but did not object to the classical scheme on the ground of harm to the Palace’s setting. The council was entitled to rely on that expert response and was not required to investigate why English Heritage made no objection.

4. The reasons challenge also failed. The short reasons were to be read with the lengthy planning process and the officer’s report, consistently with [2010] EWCA Civ 1286. They sufficiently disclosed that permission was granted because the classical scheme was considered not to harm the Palace’s setting, rather than because unidentified benefits outweighed heritage harm. Section 66(1) imposed no prescribed sequence of reasoning for a summary of reasons. Pill LJ added that, although some cases require members to identify the legal basis on which permission is granted, that requirement did not arise on these facts: [2002] EWCA Civ 990.

• Court of Appeal (Civil Division) Dismissed the appeal: [2011] EWCA Civ 891.
• High Court, Queen’s Bench Division, Administrative Court (Ouseley J) Dismissed the application for judicial review of the grant of planning permission: [2011] EWHC 86 (Admin).