East Meon Forge and Cricket Ground Protection Association, R (on the Application of) v East Hampshire District Council & Ors

In a planning judicial review, a committee must be properly directed on all material considerations and must give proper regard to the advice of a statutory consultee. Where the asserted planning justification depends on a development being the only financially viable means of securing a valued use, realistic alternative schemes may become material considerations requiring consideration. A planning officer’s report is unlawful if it significantly misleads the committee on a key issue or fails to explain a departure from important statutory-consultee advice. Mitigation measures must be realistic and enforceable. Permission was quashed because the proposed safeguards against cricket-ball injury and property damage were inadequate and the representations of Sport England had not been properly addressed.

The claimant, a local residents’ association, challenged the decision of East Hampshire District Council to grant planning permission for alterations to a historic former forge, including a first-floor residential flat and deck overlooking a recreation ground used for cricket. The claim concerned the treatment of heritage considerations, alternative schemes for retaining the building’s craft use, its registration as an asset of community value, and the risks arising from the proximity of residential occupation to cricket play.

The principal issue was whether the planning officer’s report and the committee’s decision lawfully addressed the relevant statutory duties, policies, material considerations and proposed protective measures.

1. Planning and heritage considerations. The report identified and considered the relevant development-plan policies and adequately addressed the effect of the proposal on The Forge and the conservation area. Although the report contained errors concerning the National Planning Policy Framework and did not expressly return to the duty under section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, those errors were immaterial because the report and conservation advice addressed the need to balance harm against public benefits and reflected the statutory objective.
2. Alternative schemes. The general rule is that alternative sites, and ordinarily alternative schemes, need not be considered. An exception arises where the proposal is said to be necessary to secure a valued use and the alternatives are central to that reasoning. Here, the committee needed the relevant funding information in order to assess whether the proposed residential addition was truly the only financially viable route to restoring the forge. The failure to tell the committee that the claimant had substantial funds was poor professional practice, but did not by itself justify quashing the permission.
3. Asset of community value. The registration of The Forge under the Localism Act 2011 had limited inherent effect in the planning decision. The committee could attach negligible weight to the registration insofar as it concerned only a future opportunity to bid if the property were sold. Any advice based on the mistaken view that alternatives need not be considered was, however, flawed.
4. Statutory consultee and mitigation. Sport England’s representations were made in its capacity as a statutory consultee. The report should have explained that considerable weight was due to those representations and that departure required cogent and compelling reasons. The proposed shutters, nets and deck restrictions were not realistic or enforceable safeguards. The permission had been granted on the erroneous assumption that condition 12 would require permanent guards, although the approved scheme permitted moveable shutters. Condition 13 also failed realistically to prevent use of the deck as an amenity area.
5. Disposition. The failure to give proper regard to Sport England’s advice created unacceptable risks to future occupants and the cricket club. The claim was allowed and the planning permission was quashed.

Not stated in the judgment.