Save Britain's Heritage, R (on the application of) v Liverpool City Council & Anor

A planning authority is not required by statute to consult the Department for Culture, Media and Sport or UNESCO on every proposal affecting the setting of a World Heritage Site. National Planning Practice Guidance distinguishes advisory early consultation from the specific requirement arising where Historic England maintains an objection based on adverse impact on the Site’s Outstanding Universal Value. An effect on the setting of a World Heritage Site is not automatically an effect on its Outstanding Universal Value. The authority must nevertheless address the relevant question and exercise judgment. A failure to consult will not justify quashing where the statutory or policy framework imposed no consultation duty and the outcome would in any event have been the same.

The claimant sought judicial review of Liverpool City Council’s grant of planning permission for redevelopment at Lime Street, Liverpool, within the buffer zone of Liverpool’s World Heritage Site. The sole ground was that the Council had failed to notify the Department for Culture, Media and Sport and, through it, the World Heritage Committee, contrary to the World Heritage Committee Operational Guidance and paragraph 18A-036 of the National Planning Practice Guidance.

The Council accepted that the development could affect the setting of the World Heritage Site but maintained that it had considered whether the development affected its Outstanding Universal Value. Historic England had been consulted and had not objected. The issues were whether consultation was required and, if so, whether the alleged failure warranted a quashing order.

1. Claim dismissed. The Council had no statutory duty under the Town and Country Planning (Development Management Procedure) (England) Order 2010 to consult DCMS or the World Heritage Committee about a development potentially affecting a World Heritage Site.
2. Paragraph 18A-036 of the National Planning Practice Guidance contained two distinct provisions. Its first paragraph advised that it would be helpful for planning authorities to consult Historic England and DCMS at an early stage where proposals might affect Outstanding Universal Value. It did not impose a universal consultation requirement. Its second paragraph imposed a requirement to consult the Secretary of State where Historic England maintained an objection and the application would have an adverse impact on Outstanding Universal Value, integrity, authenticity or significance. That condition was absent because Historic England had not objected.
3. The Council had asked itself the right question. The evidence showed that its heritage manager had considered the effect on Outstanding Universal Value and concluded that there was none. An effect on the setting of a World Heritage Site was not to be equated automatically with an effect on Outstanding Universal Value. The law did not require an audit trail for every internal discussion by planning officers.
4. The World Heritage Committee Operational Guidelines and the guidance on protection and management of World Heritage Sites supported co-operation and notification in appropriate cases, but imposed no compulsion to refer every potentially relevant planning application. An intervening exercise of judgment by the State was contemplated.
5. R (Friends of Hethel Ltd) v South Norfolk District Council [2010] EWCA Civ 894 was distinguishable. It concerned a clear consultation requirement and a finely balanced decision, neither of which applied here.
6. In any event, even if consultation with DCMS had been required, the claim would still fail. Applying the approach in Walton v Scottish Ministers [2012] UKSC 44 and section 31(3)(c) of the Senior Courts Act 1981, the outcome would not have been materially or substantially different, given Historic England’s position and the absence of evidence that referral would have affected the decision.

First-instance judicial review proceedings. No prior decision in the same litigation was stated in the judgment.