Gibson, R (On the Application Of) v Waverley Borough Council

In determining an application affecting a listed building, the planning authority must give considerable importance and weight to preserving the building, its setting and its special interest. Where harm is less than substantial, the authority must weigh that harm against the proposal’s public benefits, including its optimum viable use. Identifying the optimum viable use is a matter of planning judgment at the date of decision; an earlier judgment does not fix that use for all time. The authority must consider reasonably available, less harmful alternative uses, but the evaluation will vary with the circumstances and planning history. A court should not interfere with the authority’s assessment of heritage harm or its planning balance unless the decision is legally flawed or irrational.

The claimant sought judicial review of Waverley Borough Council’s decisions of 31 March 2015 granting planning permission and listed building consent for the change of use and redevelopment of Undershaw, a Grade II listed former home of Sir Arthur Conan Doyle. The proposal involved educational use by Stepping Stones School, extensions, internal alterations, changes to access and parking, and demolition of a modern extension.

The claimant relied on an earlier judgment concerning Undershaw, which had quashed permission for residential redevelopment, and argued that single residential use, or a less harmful 30-pupil school use, remained the optimum viable use. The central issues were whether the Council had properly assessed alternative viable uses, heritage harm, public benefits and the development plan.

1. The claim was dismissed. The earlier judgment in the First Gibson Case did not bind the Council to treat single residential use as the only optimum viable use for all time. That conclusion had depended on the material before the earlier court, including an offer to purchase the property for that purpose. Whether a use is the optimum viable use is a judgment for the authority at the time of the later decision.
2. The Council was entitled to conclude that single residential use was not viable, despite concerns about the adequacy of marketing. The planning history showed that other proposed uses had not been realised and the Officers’ Report drew the relevant matters to the Planning Committee’s attention.
3. The Council was also entitled to treat the 64-pupil educational proposal as the only viable use then available which would preserve the building from further deterioration. Although the earlier 30-pupil proposal had been described as feasible and viable, the later material indicated that the larger scheme and its facilities were essential to the school’s operation. The word “fallback” did not fix the earlier proposal as a long-term viable alternative.
4. The court accepted the need for a suitably rigorous assessment of alternative, less harmful uses, applying the approach identified in R (Forge Field Society) v Sevenoaks DC [2015] JPL 22 and R (Langley Park School for Girls Governing Body) v Bromley LBC [2010] 1 P & CR 10. In this case, the extensive planning history and the Officers’ Report sufficiently addressed that issue.
5. The conclusion that the proposal caused less than substantial harm was a planning judgment that could not be characterised as perverse. Accordingly, the balancing exercise under paragraph 134 of the NPPF was applicable. The Council lawfully weighed the heritage harm against the educational, conservation and public-access benefits, giving considerable importance and weight to preservation as required by East Northamptonshire DC v SSCLG [2015] 1 WLR 45.
6. The challenge under section 38(6) of the Planning and Compulsory Purchase Act 2004 also failed. The report identified the relevant Local Plan policies, explained their conformity with the NPPF and provided the necessary basis for the decision. There was no realistic prospect that fuller discussion of those policies would have altered the planning judgment.

Not stated in the judgment.