Loader, R (on the application of) v Rother District Council & Ors

A local planning authority must comply with the statutory duty to notify English Heritage of an application affecting the setting of a listed building. A breach does not necessarily require the planning permission to be quashed. Relief may be withheld where, viewing the decision-making process as a whole, the court is satisfied that the authority would have reached the same decision.

There is no general legal duty to consult the Victorian Society where the statutory consultation conditions do not apply. Under paragraph 74 of the NPPF, open space is not confined to land used for active recreation. However, the paragraph’s alternatives are disjunctive, and equivalent or better provision may satisfy the policy without a comprehensive surplus assessment.

The claimant, a local resident, sought judicial review of planning permission granted by Rother District Council for redevelopment of a bowls club site, including sheltered apartments and replacement bowls facilities. The site was opposite a Grade II listed terrace and had been registered as an asset of community value.

She alleged failures to consult English Heritage and the Victorian Society, misunderstanding of paragraph 74 of the NPPF, and failure to take account of the site’s status as an asset of community value. The central questions were whether the authority had committed legal errors and, if so, whether the permission should be quashed.

1. English Heritage. The authority was under a statutory duty under regulation 5A(3) of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 to send English Heritage copies of the required publicity notices. It failed to do so. Ground 1(i) therefore succeeded.
2. Victorian Society. No statutory duty required consultation with the Victorian Society on this application. Re-consultation would have been good practice, but the failed attempt to use an obsolete email address did not amount to legal error or materially mislead the committee. Ground 1(ii) failed.
3. Open space. Paragraph 74 of the NPPF must be read with paragraphs 73, 76 and 77 and the glossary. Its reference to open space is not limited to land in active recreational use and includes relevant amenity qualities. The alternatives in paragraph 74 are not cumulative. The replacement bowls facilities provided equivalent or better provision in quantity and quality, so the second bullet was satisfied. Ground 2 failed.
4. Asset of community value. The committee was properly advised that the whole site, rather than merely the bowls club buildings, was listed. The officer report considered the listing, the community right to bid and the site’s visual openness. The committee was not materially misled. Ground 3 failed.
5. Relief. Applying the approach in Kendall v Rochford District Council, [2014] EWHC 3866 (Admin), and the test stated in Bolton Metropolitan Borough Council v Secretary of State for the Environment, [1990] 61 P&CR 343, and Simplex GE (Holdings) v Secretary of State for the Environment, [1989] 57 P&CR 306, the court was satisfied that the same decision would have been reached. It therefore exercised its discretion not to quash the permission. The claim failed.

The judgment describes earlier planning and judicial review proceedings concerning the site, including the Court of Appeal decision in R (Loader) v Secretary of State for Communities and Local Government and Others, [2012] EWCA Civ 869. Those proceedings concerned an earlier environmental impact assessment screening direction and were not the decision under review here.

This was a first-instance judicial review of planning permission granted by Rother District Council. The permission was upheld.