Gibson, R (on the application of) v Waverley Borough Council & Anor

When a proposal affects a designated heritage asset, the local planning authority must give special regard to its preservation and apply the presumption in favour of conservation. Where more than one viable use exists, the optimum viable use is the one causing the least harm to the asset’s significance, not necessarily the most profitable use. A materially superior alternative use must be taken into account and may provide a compelling reason to refuse the less suitable proposal. A marketing exercise is relevant only if it genuinely tests the market at a realistic value, having regard to the asset’s condition and any deliberate neglect. A later grant of permission for the optimum viable use may require reconsideration of an earlier application.

The claimant sought judicial review of Waverley Borough Council’s decision to grant planning permission and listed building consent for the subdivision, extension and alteration of Undershaw, a Grade II listed house associated with Sir Arthur Conan Doyle. The approved scheme created several dwellings. A separate applicant, later identified as Mr Norris, had proposed restoring Undershaw as a single dwelling and obtained planning permission before the Council issued its formal decision notices on Fossway Ltd’s applications.

The claim challenged the Council’s treatment of the alternative proposal, the adequacy of Fossway’s marketing evidence, notification of English Heritage, the statutory heritage tests and the reasons given for approval.

1. Heritage balance. The statutory duties under sections 16(2) and 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, together with sections 38(6) of the Planning and Compulsory Purchase Act 2004 and 70(2) of the Town and Country Planning Act 1990, required special regard to preservation and adherence to the presumption in favour of conservation. Under PPS5 policy HE9.4, the public benefit of a proposal had to be weighed against less-than-substantial harm.
2. Optimum viable use. Where alternative uses would each be viable, the optimum viable use is the use causing the least harm to the heritage asset’s significance. It need not be the most profitable use. The general principle in Trust House Forte Ltd v Secretary of State (1986) 53 P&CR 293 could not be applied without qualification to heritage assets. The single-dwelling proposal was the optimum viable use and was therefore a highly material consideration. The Council’s failure to advise the committee of that significance was an error of law.
3. Later permission. The grant of planning permission for the single-dwelling scheme before the formal decision notices was a new and material consideration, particularly because the permission ran with the land. Applying R (on the application of Kides) v South Cambridgeshire District Council [2002] 4 PLR 66, the matter should have been referred back to the committee. The omission breached sections 70(2) and 38(6).
4. Marketing. The marketing exercise did not adequately test whether the optimum viable use could be achieved. No offers for a single dwelling were being considered, including the relevant offer later made by Mr Norris. The marketing evidence therefore significantly misled the committee about a material matter, within the approach in Oxton Farms v Selby District Council [1997] EWCA Civ 404. Any value differential caused by deliberate neglect could not properly support a more harmful development.
5. English Heritage. The Council was required by section 15(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and regulation 5A(3) of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 to notify English Heritage. Sending a letter which was not received, followed by no inquiry when there was no response, did not discharge that obligation. The Council also had to notify English Heritage of the later permission because it was highly material.
6. Reasons. The reasons given for granting planning permission were adequate under article 22 of the Town and Country Planning (General Development Procedure) Order 1995. Reasons may be brief where the decision follows a detailed officer’s report and identifies the relevant policies and the basis for the decision, as illustrated by R (Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286 and R (on the application of Telford Trustees) v Telford & Wrekin Council [2011] EWCA Civ 896.
7. The decisions to grant planning permission and listed building consent were quashed because of the legal flaws concerning material considerations, reconsideration, marketing and notification.