Shimbles, R (on the application of) v City of Bradford Metropolitan District Council

In assessing harm to a designated heritage asset or its setting, a local planning authority need not place the harm on a further spectrum beyond the distinction between substantial and less than substantial harm in the National Planning Policy Framework. It must, however, undertake a genuinely weighted balancing exercise. The statutory duty to give special regard to preservation, and the policy requirement to give conservation great weight, must be applied in substance rather than as lip service.

Under the Conservation of Habitats and Species Regulations 2010, a further appropriate assessment is required only where there remains a scientific doubt, founded on credible evidence, about likely significant adverse effects on a European site. The court will not substitute its own assessment for that of the competent authority where the authority relies on tenable scientific opinion.

The claimant sought judicial review of the defendant local planning authority’s decision to grant permission for two energy-from-waste plants near East Riddlesden Hall, a Grade I listed building, and near the South Pennine Moors SPA and Rombald’s Moor SAC.

Five grounds alleged inadequate treatment of heritage harm, failure to assess the significance of the asset and its setting, failure to undertake a further appropriate assessment under the Conservation of Habitats and Species Regulations 2010, breach of the precautionary principle, and irrationality. The central issues were whether the authority had lawfully weighed the heritage harm and whether updated air-quality evidence displaced an earlier assessment raising possible adverse effects.

1. Heritage assessment. The claim that harm must be located on a spectrum beyond the substantial/less-than-substantial distinction was rejected. That approach would add unnecessary complexity and was unsupported by section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 or paragraphs 132–135 of the NPPF.
2. The authority was nevertheless required to conduct a weighted, rather than bare, balancing exercise. The officer’s report showed that the Grade I status of East Riddlesden Hall, the visual harm caused by the chimney and vapour plume, and the statutory presumption in favour of preservation had been recognised. The harm was less than substantial, but it had not been trivialised. The public benefits, although also less than substantial, were capable of outweighing it.
3. European sites. The 2012 Environ report constituted an appropriate assessment and raised a possible risk requiring satisfactory resolution. The later R-AEA report addressed a materially different and cleaner plant design. The claimant had not produced credible evidence showing that its methodology or conclusions were invalid. The local planning authority was therefore entitled to rely on tenable scientific opinion and Natural England’s advice.
4. There was no scientific doubt, founded on credible evidence, requiring a further assessment under regulations 61(1) and 61(5) of the Conservation of Habitats and Species Regulations 2010. The change in Natural England’s position was adequately explained by further information. The failure to mention the earlier Environ report did not invalidate the decision because it had been overtaken by the updated assessment.
5. The irrationality challenge failed. All five grounds were rejected and the claim was dismissed.

First-instance judicial review. The High Court dismissed the claim challenging the grant of planning permission.