Hughes, R (On the Application Of) v South Lakeland District Council

A screening opinion for a Schedule 2 development must give clear and precise reasons addressing whether the proposal is likely to have significant environmental effects. It is insufficient to defer assessment of material issues, such as noise, traffic and air quality, to the later planning process.

In assessing harm to a conservation area, the statutory presumption favouring preservation or enhancement must be expressly recognised and applied. A simple balancing exercise under paragraph 134 of the NPPF is inadequate. A local plan policy requiring proof of retail need may be given no weight where it is out of date and inconsistent with the NPPF.

The claimant sought judicial review of South Lakeland District Council’s decision to grant planning permission and conservation area consent for demolition and redevelopment of the former Hartley’s Brewery site in Ulverston. The proposal included a supermarket, car park and retail or office accommodation within the Ulverston Conservation Area.

Five grounds were advanced concerning the environmental impact screening opinion, heritage impacts, retail need, the development plan and the adequacy of the reasons. The central issues were whether the screening opinion lawfully addressed likely significant environmental effects and whether the Council had applied the statutory heritage presumption.

1. Ground 1. The screening opinion was legally unsound because, although it dealt adequately with the development’s general scale, location and hazardous effects, it did not reach a reasoned conclusion on noise, air quality, traffic and related impacts. Deferring those matters to the planning stage did not satisfy regulation 4(7) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. The court nevertheless declined to quash on this ground because the reports showed that, with straightforward and uncontroversial mitigation, the same screening conclusion was inevitable.
2. Ground 2. Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 required special weight to be given to preserving or enhancing the conservation area. The Council’s report merely applied paragraph 134 of the NPPF and conducted an ordinary planning balance. It did not demonstrably apply the statutory presumption. That defect was material because heritage harm was a major issue and permission had been granted by a bare majority. Permission was therefore quashed on this ground.
3. The report had sufficiently considered the proposed demolition of the Brewery Tower. The absence of a specific reference in its conclusions did not establish that the Tower had been ignored.
4. Ground 3. Local Plan policy R5 was out of date and inconsistent with the NPPF, which provided a complete retail assessment code based on the sequential and impact tests and no longer required retail need to be demonstrated. No material error arose from the Council’s treatment of need. The suggested effect of competition with the existing out-of-centre Booths store was too speculative to be a material consideration.
5. The challenges concerning Local Plan policy C16 and the reasons for permission failed or would in any event not justify relief. The claim accordingly succeeded only on Ground 2(a), and the Permission was quashed.