Boden v East Staffordshire Borough Council & Anor

A planning decision is not unlawful merely because an officer’s report does not repeat every relevant policy or statutory provision. The court may infer that the necessary balancing exercise was undertaken from the report, supporting documents, site inspection and committee discussion.

Any harm to the setting of a listed building which is more than de minimis engages section 66 of the Planning (Listed Building and Conservation Areas) Act 1990. The harm must receive considerable importance and weight, even where it is minor or less than substantial. Express reference to section 66 is unnecessary if the decision materials demonstrate that the statutory balance was actually performed. Relief may nevertheless be refused where any error could not have affected the outcome.

The claimant, a local resident, challenged the Planning Committee’s grant of permission for a 5 MW solar farm near Denstone College, a group of Grade II listed buildings. The challenge was considered at a rolled-up hearing following an order by Patterson J.

The claimant ultimately relied on one ground: that the Council had failed to assess the development’s effect on the setting of the listed buildings as required by statute, policy and national guidance. The criticisms concerned the officer’s reliance on the Heritage Statement, the treatment of minor harm, the absence of an express reference to section 66, the weight given to heritage harm, development plan policy, alleged misleading terminology and the structure of the officer’s report.

1. Outcome. The application for permission to bring judicial review proceedings was refused. Alternatively, if permission should have been granted, substantive relief was declined.
2. An officer’s report is addressed to informed committee members. It need not reproduce every relevant policy, fact or legal principle, and it should not be subjected to excessively technical textual analysis. Reliance on and summary of supporting documents did not amount to delegation of the decision-making function.
3. Any adverse impact on a listed building or its setting which is more than de minimis engages section 66 of the Planning (Listed Building and Conservation Areas) Act 1990. Such harm must receive considerable importance and weight. That remains so where the harm is minor or less than substantial, although the statutory presumption may be outweighed by sufficiently powerful planning considerations.
4. The Heritage Statement wrongly suggested that minor harm was irrelevant to the planning decision. That error did not infect the decision-making process. The Heritage Statement considered the issue in detail, the officer’s report treated the harm as part of the planning balance, and the committee inspected relevant viewpoints and discussed the impact.
5. The absence of an express reference to section 66 or to considerable weight was not decisive. The proper inference from the documents and the committee’s conduct was that the harm had been considered and balanced against the environmental and economic benefits of renewable energy development. The report’s use of “minimal” rather than “minor” was an irrelevant inaccuracy.
6. The development plan policies were sufficiently addressed through the Heritage Statement, which provided the required statement of significance. No demonstrated conflict with the policies was established.
7. Applying the approach in Simplex GE Holdings v Secretary of State [1989] 57 PNCR 6 and Smech Properties Ltd v Runnymede BC [2016] EWCA Civ. 42, the court held that any failure expressly to begin the balance with considerable weight for heritage harm could not have affected the result. The minor harm was clearly outweighed by unchallenged environmental and economic benefits.

This was a first-instance judicial review decision in the Administrative Court. Patterson J had directed that permission be considered at a rolled-up hearing.