Irving, R (on the application of) v Mid-Sussex District Council & Anor

When determining a planning application, an authority must assess the development plan as a whole and give proper effect to statutory duties and material national policy. A policy may be out of date for housing-supply purposes without losing all relevance, particularly where it protects specific environmental or landscape interests.

Harm to one part of a conservation area remains harm to the character or appearance of the area for the purposes of section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990. The fact that the conservation area as a whole retains its special character does not remove that harm. Such harm must receive significant weight. The sequential heritage-asset approach in paragraphs 132 to 134 of the NPPF must also be applied. Failure to do so justified quashing the planning permission.

The claimant challenged Mid-Sussex District Council’s grant of planning permission for a detached house on open land at Courtmead Road, Cuckfield. The site lay partly within a conservation area, outside the built-up area boundary, and within an area identified for important views of the surrounding countryside.

The Council’s officer considered that housing policies were out of date because the Council lacked a five-year housing-land supply. The report concluded that any harm to the conservation area was limited and that the character and appearance of the area as a whole would be preserved. The claimant alleged errors concerning the NPPF, the development plan, conservation-area duties, the neighbourhood plan and open space.

1. Outcome. Grounds 1 and 3 succeeded. The grant of planning permission was quashed. Grounds 2, 4 and 5 failed.
2. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the decision-maker had to assess the proposal against the development plan as a whole and identify the nature and extent of any conflict. The fact that policies concerning housing supply were out of date did not mean that all policies relevant to the site became out of date. Policy CNP 5 remained material insofar as it protected specified landscape views.
3. The NPPF was a material consideration operating within, and not replacing, the statutory planning framework. Paragraphs 14 and 49 did not disapply development-plan policies or prescribe the weight to be given to them. The weight given to an out-of-date housing policy remained a matter of planning judgment.
4. Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 required special attention to the desirability of preserving or enhancing the character or appearance of the conservation area. Harm to one part of the area was harm for that purpose. The fact that the conservation area as a whole retained a special character did not overcome the harm to the affected part. The harm therefore had to receive significant weight.
5. The NPPF heritage provisions required the decision-maker to assess the significance of the asset and the degree of harm. If the harm was less than substantial, the public benefits had to be weighed against it under paragraph 134. Paragraphs 132 to 134 could not diminish the statutory section 72 duty.
6. The officer’s report acknowledged harm to important views but wrongly concluded that there was no conflict with the conservation-area policy because the area as a whole would remain special. It therefore failed properly to apply section 72, paragraphs 132 to 134 of the NPPF, Policy B12 and the landscape-protection element of Policy CNP 5. The court was not satisfied that the Council would necessarily have reached the same decision had it applied the correct approach.
7. The Council was nevertheless entitled to conclude, as a matter of planning judgment, that the land should not be treated as recreational open space, having regard to its status as private land and the open-space assessment.

The judgment records that an earlier permission for development on the site had been successfully challenged and accepted as unlawful by the Council. Permission to bring the present judicial review was granted on some grounds at renewal and on further grounds by Lewison LJ. The present court upheld Grounds 1 and 3 and quashed the later permission.