Save Britain's Heritage, R (On the Application Of) v Liverpool City Council & Anor (Rev 1)

Guidance stating that it would be “very helpful” for planning authorities to consult Historic England and the Department for Culture, Media and Sport on proposals affecting a World Heritage Site is advisory, not mandatory. Read in context, “may affect” Outstanding Universal Value refers to a potential adverse impact, rather than any positive, neutral or negative effect. Timely consultation of Historic England may amount to substantial compliance where it enables specialist advice to reach central government. A local planning authority’s assessment of impact on Outstanding Universal Value is a matter of planning judgment. A decision will not be unlawful merely because the authority did not directly consult the Department for Culture, Media and Sport.

Save Britain's Heritage challenged planning permission granted by Liverpool City Council for a major mixed-use development in Lime Street, within the buffer zone of the Liverpool Maritime Mercantile City World Heritage Site. It alleged that the council had failed to notify the Department for Culture, Media and Sport, and through it UNESCO’s World Heritage Committee, and had failed properly to consider the guidance in paragraph 18a-036 of the Planning Practice Guidance.

Patterson J dismissed the judicial review claim: [2016] EWHC 48 (Admin). The appeal concerned the meaning and legal effect of the guidance, whether the council had complied with it by consulting Historic England and assessing the proposal’s impact, and whether any error would justify quashing the permission.

1. Appeal dismissed. The council had acted lawfully in granting planning permission.
2. The Planning Practice Guidance supplements and explains the National Planning Policy Framework and must be interpreted objectively and contextually. The words “may affect” Outstanding Universal Value in paragraph 18a-036 mean may have an adverse impact. They do not extend to every positive, neutral or adverse effect. That construction accords with the conservation policies in the National Planning Policy Framework, the related guidance, and paragraph 172 of the Operational Guidelines.
3. The first sub-paragraph of paragraph 18a-036 uses encouraging and advisory language. It does not impose a mandatory requirement that every local planning authority directly consult the Department for Culture, Media and Sport. Timely consultation of Historic England may substantially comply with the guidance because Historic England is the Government’s specialist adviser and can alert the Department if referral to the World Heritage Committee is appropriate.
4. The council consulted Historic England at an early stage and again after revision of the scheme. Historic England did not object and later advised that the proposal would not harm the World Heritage Site or its setting. The council’s planning judgment that there would be no impact on Outstanding Universal Value was not susceptible to challenge. The later decision of the World Heritage Committee did not demonstrate any earlier domestic error.
5. The issue of remedial discretion was academic. Even if an error had been established, the evidence supported the conclusion that direct consultation of the Department would not have produced a different outcome. The court would therefore have been entitled to withhold an order quashing the permission.
6. Sales LJ agreed with Lindblom LJ and added that the guidance had substantive legal effect by indicating that relevant proposals should at least be brought to Historic England’s attention. Its muted language nevertheless fell far short of making failure to consult both Historic England and the Department an invalidating error. The council’s substantial compliance fulfilled that implied obligation.

• Court of Appeal (Civil Division): dismissed Save Britain's Heritage’s appeal and upheld the planning permission.
• Administrative Court, Planning Court: Patterson J dismissed the judicial review claim challenging Liverpool City Council’s planning permission: [2016] EWHC 48 (Admin).