TW Logistics Ltd & Ors, R (on the application of) v Anglia Maltings (Holdings) Ltd

A conservation area management plan prepared under section 71 of the Planning (Listed Building and Conservation Areas) Act 1990 is concerned with conservation protection and enhancement. It is not necessarily a development plan document and need not set policies governing changes of use.

Where a planning policy requires the authority to have regard to the potential use of existing buildings for a particular purpose, that requires conscientious consideration of the factor. It does not ordinarily make that use the sole or overriding consideration. A local authority may lawfully reconsider and reaffirm its decision to adopt a management plan where no statutory procedural bar applies. Legitimate expectation requires a clear and unambiguous representation, or conduct amounting to an abuse of power, and procedural unfairness generally requires actual prejudice.

TW Logistics Limited sought judicial review of Tendring District Council’s decision to adopt the Manningtree and Mistley Conservation Area Management Plan. The claimant operated Mistley Port and argued that the plan was inconsistent with saved policies in the Tendring Local Plan 2007, particularly policy LMM1, which required protection of port operations and consideration of the potential for port uses before changes of use.

The claimant also alleged inadequate consultation, unlawful failure to progress the management plan in tandem with a supplementary planning document, breach of legitimate expectation, and apparent bias or predetermination by the councillor involved in the decision.

The central issues were whether the management plan conflicted with the development plan, whether the consultation and reconsideration process was lawful, and whether the decision was vitiated by legitimate expectation or apparent bias.

1. Application refused. The claimant failed on all five grounds of challenge.
2. Policy LMM1 was a criterion-based policy applying to the whole Mistley Urban Regeneration Area. Its requirement to “protect the port operations” concerned the existing port operation. Its requirement to have regard to the potential for port uses of existing buildings required the Council conscientiously to consider that factor before permitting another use. It did not require port use to be treated as the sole, exclusive or overriding consideration, nor establish that the quayside was first and foremost for port-related uses: [2012] EWHC 1209 (Admin), paras 54–63.
3. The conservation area management plan was directed to conservation protection and enhancement. Recommendations concerning the appearance, redevelopment or enhancement of buildings, open spaces and fencing did not prescribe a change of use and did not prevent proper consideration of port-related use under LMM1(iv). The plan was not inconsistent with the saved development-plan policies and could be taken into account as a material consideration: paras 64–80.
4. The Council was not required to answer every individual objection in detail, provided the objections were adequately summarised and considered. The claimant’s objections were sufficiently summarised. The Council could reconsider and reaffirm the adoption decision because the management plan was not subject to a statutory adoption procedure creating rights or obligations for third parties. The later decision was a fresh decision, not merely an impermissible supplementation of reasons: paras 81–93.
5. No statutory or other obligation required the management plan to be produced in tandem with the supplementary planning document: paras 94–95. No clear and unambiguous representation created a legitimate expectation of further consultation. Nor was there procedural unfairness in the absence of actual prejudice, since the objections were considered: paras 96–103.
6. The apparent-bias and predetermination challenge failed. Councillors may hold and publicly express prior political or planning views, provided they approach the decision with an open mind, consider the material matters and remain willing to change their minds. The evidence fell well short of establishing a closed mind, particularly as the Cabinet unanimously reaffirmed the decision: paras 104–119.