Garner & Ors v Elmbridge Borough Council & Ors

A planning authority complies with the statutory duty to have special regard to the desirability of preserving a listed building or its setting if, viewed substantively, that issue has been given proper priority. Express citation of the statutory language is unnecessary. Where harm to the setting is identified, sufficiently strong countervailing reasons are required, but the authority need not use a prescribed formula. The sequential approach to flood risk may be applied by reference to the development site where the proposal is a comprehensive, site-specific regeneration scheme. It is lawful then to consider the Exception Test without separately relocating each component use, provided the relevant policies and evidence have been considered. Reasons may be broad but adequate when read with the decision-maker’s report.

Elmbridge Borough Council granted planning permission for the comprehensive redevelopment of land around Hampton Court Railway Station, including residential, commercial, hotel and care-home uses, a station redevelopment and underground parking. The claimants challenged the permission on the grounds that the Council had failed to have special regard to the setting of Hampton Court Palace and Hampton Court Bridge under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990; had failed lawfully to apply the sequential and exception tests in PPS 25; and had given inadequate reasons and failed to summarise the relevant development-plan policies.

The setting ground had previously been refused permission because of standing, and the flood-risk ground because it was considered unarguable. The issues were reconsidered at the rolled-up hearing.

1. Setting of listed buildings. The Council had complied with section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. The desirability of preserving the setting of Hampton Court Palace and Bridge was a key issue throughout the planning process, including the planning brief, consultation material, environmental assessment, site visits and officer’s report. The absence of an express reference to section 66 or to the formulation in South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141 did not establish legal error.
2. The statutory duty does not permit preservation of the setting to be treated as an ordinary material consideration whose weight is selected freely. It is presumptively desirable. If harm is identified, sufficiently strong countervailing reasons are required. The authority may nevertheless conclude that a development preserves or forms an acceptable part of the setting, and need not treat the existing derelict condition as the baseline which must be preserved.
3. Flood risk. PPS 25 required the sequential approach to be applied at site level. A comprehensive regeneration scheme intrinsically linked to a particular railway station did not require each component use to be tested against alternative sites elsewhere. The Council was entitled to proceed to the Exception Test after concluding that lower-risk alternative sites were unsuitable for the site-specific development. Its treatment of viability, land value, flood risk and the scope for relocating vulnerable uses disclosed no error of law.
4. Reasons and policies. The short reasons for permission were broad but adequate when read with the officer’s report. Failure expressly to mention section 66 was not itself unlawful. The Council had, however, failed to provide the required summary of the relevant development-plan policies under article 22 of the Town and Country Planning (General Development Procedure) Order 1995. That omission was minor and did not justify relief.
5. Permission was granted on the setting ground and on the policy-summary ground, but relief was refused. Permission was refused on the flood-risk ground. No order requiring further action was made.

This was a first-instance judicial review. The judgment records that permission on the setting ground had previously been refused for want of standing and delay, and on the flood-risk ground for want of arguable merit. The background to a protected costs order is given in R (Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006.