Lady Hart of Chilton, R (on the application of) v Babergh District Council

A local planning authority may rely on substantial socio-economic benefits to justify development causing harm to designated heritage assets where it has lawfully applied the relevant statutory and policy tests. The authority must assess the likelihood, longevity and deliverability of those benefits, but may rely on a rational planning judgment about the prospects of implementation. Planning obligations expressed as reasonable endeavours may be enforceable where their content is sufficiently determinate. A consultation direction referring out-of-town development applies where the development includes a material element of office use and the total floor space exceeds the specified threshold. Failure to comply with that requirement is a legal error, although relief may properly be deferred to allow the Secretary of State to decide whether to call in the application.

The claimant sought judicial review of the defendant council’s decision to grant planning permission for two large industrial and warehouse buildings near Chilton Hall, a Grade II* listed building, St Mary’s Church, a Grade I listed building, and other heritage assets. The council accepted that the development would cause substantial harm to some assets and harm to others, but concluded that the associated employment and economic benefits justified permission. The challenge raised issues concerning the adequacy and enforceability of the section 106 agreement, consideration of benefit longevity and alternatives, reasons, heritage assessment, employment information, committee papers, referral to the Secretary of State, and environmental impact assessment.

The central issue was whether the council had acted unlawfully in granting permission and, in particular, whether the application fell within the referral requirement for out-of-town development.

1. Grounds 1–4 and 6–10. The challenges failed. The council was entitled, as a matter of planning judgment, to conclude that the negotiated planning agreement represented the best commercially workable terms likely to secure substantial socio-economic benefits. The council had considered deliverability and longevity, and was not required to reproduce the precise wording of supplementary guidance where those matters had been anxiously considered.
2. The reasonable-endeavours obligation in paragraph 1.10 of Schedule 2 was enforceable according to ordinary contractual principles. Its qualifications concerning Prolog’s financial integrity and ability to trade did not deprive it of sufficiently determinate content. The value of the planning agreement, rather than its enforceability, was a matter for the council’s planning judgment.
3. The officers’ supplementary report gave adequate reasons. The council was not required to explain why it had departed from negotiating positions adopted in correspondence, since those positions were not final planning reasons or binding legal advice.
4. The council had applied the correct heritage policy approach. The confusion in describing the degree of harm to the walled garden was immaterial because the committee understood that the development caused substantial harm to the Grade I listed Church and could be permitted only in a wholly exceptional case. It had given special regard to preservation of the listed buildings and had considered alternative sites and the necessity of the proposed scale.
5. Ground 5 succeeded. Paragraph 5(1) of the Town and Country Planning (Consultation) (England) Direction 2009 applied to an out-of-town development exceeding 5,000 square metres which included a material element of B1 office space. The council therefore had to refer the application to the Secretary of State under section 77 of the Town and Country Planning Act 1990.
6. The court deferred the final order. If the Secretary of State declined to call in the application, the provisional view was that the permission should not be quashed. If he elected to call it in, the council’s decision should be quashed to enable that process.