The Forge Field Society & Ors, R (On the Application Of) v Sevenoaks District Council

A second planning application for an identical or similar development is not automatically affected by apparent bias merely because an earlier permission is under judicial review. The question is fact-sensitive, and the fresh application must be determined on its current planning merits with an open mind. Under sections 66(1) and 72 of the Listed Buildings and Conservation Act 1990, a finding of heritage harm engages a strong statutory presumption against permission. The harm must receive considerable importance and weight, even where limited or less than substantial. Development-plan policy cannot dilute that statutory duty. Where acknowledged need coexists with acknowledged harm, potentially suitable alternative sites must be properly investigated. The meaning of major development in the NPPF is contextual.

Two judicial review claims challenged planning permissions granted by Sevenoaks District Council for six affordable dwellings at Forge Field, Penshurst. The first claim concerned permission granted in October 2012; the second concerned a substantially identical permission granted in October 2013 while the first claim remained pending. The Council abandoned its defence to the first claim but contested the second.

The second claim alleged apparent bias, breach of the duties concerning listed buildings and conservation areas, misapplication of national policy for the Area of Outstanding Natural Beauty, failure to consider alternative sites, and irrationality. The court had to determine whether the Council’s fresh decision was lawfully made and whether its assessment of heritage harm, policy, and alternative locations was legally sufficient.

Disposition. Both judicial review claims succeeded. The planning permissions granted on 25 October 2012 and 4 October 2013 were quashed, and both applications had to be determined again.

1. Apparent bias. The applicable test was whether a fair-minded and informed observer, having considered the relevant facts, would think there was a real possibility of bias. The observer was objective and dispassionate, neither complacent nor unduly suspicious. A second application could lawfully be determined while an earlier permission was under challenge. It had to be treated as a discrete statutory decision on the planning merits at the time, approached with an open mind. On the facts, the Council’s directions to its committee were clear and there was no evidence of bias, predetermination, or an attempt to ratify the earlier decision. The ground therefore failed. The court distinguished R. (on the application of Carlton-Conway) v Harrow London Borough Council [2002] EWCA Civ 927, which concerned materially different facts.
2. Heritage duties. Sections 66(1) and 72 of the Listed Buildings and Conservation Act 1990 imposed more than a duty to treat heritage preservation as an ordinary material consideration. Once harm to a listed building’s setting or to a conservation area was found, the decision-maker had to give that harm considerable importance and weight. The resulting strong statutory presumption against permission was rebuttable, but only by sufficiently powerful material considerations. The officer had instead treated limited or less than substantial harm as a limited objection and carried out an ordinary balancing exercise. He also failed to reconcile the statutory presumption with the development-plan policy presumption in favour of affordable housing. The heritage ground succeeded.
3. AONB policy. The assessment of landscape harm and its acceptability was a matter of planning judgment reviewable only on public-law grounds. The phrase major development in NPPF paragraph 116 had to be understood in the context of the NPPF, rather than by importing the definition in article 2(1) of the Town and Country Planning (Development Management Procedure) Order 2010. It was reasonable to conclude that six dwellings on the site were not major development. This ground failed.
4. Alternative sites. Where a proposal offered clear planning benefits but also raised clear objections, the authority might have to consider whether a more appropriate site existed. Here, the acknowledged housing need and acknowledged heritage and landscape harm required a rigorous assessment. The officer did not squarely address the suggested joint development at Becket’s Field by West Kent and the Becket Trust. That was a potential, non-fanciful alternative which could have avoided the identified harm. The omission was an error of law.
5. Irrationality. The errors of law did not themselves make the decision irrational. That ground failed.