Historic Buildings And Monuments Commission for England, R (On the Application Of) v Milton Keynes Council

Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires an evaluative judgment about the character and appearance of a conservation area. That judgment is not confined to historic buildings or visual appearance. Historic uses may contribute to character, including through their effect on the experience and understanding of an area. The decision-maker may therefore give greater weight to preserving a historic use than to retaining particular non-listed buildings, provided the judgment is rational and informed by the reasons for designation. A planning committee that adopts an officer’s recommendation will ordinarily be taken to have adopted the report’s reasoning. Individual comments during debate do not displace that conclusion where the committee resolves to approve the recommendation unamended.

Historic England challenged Milton Keynes Council’s grant of outline planning permission for the redevelopment of Wolverton railway works. The proposal involved substantial demolition of historic railway buildings within the Wolverton Conservation Area, while retaining parts of certain structures and continuing a railway-related use.

The claim alleged breaches of the environmental impact assessment reasons requirements and unlawful consideration of the conservation-area duty. Permission was granted on those grounds, together with a rolled-up hearing on an additional ground concerning the reasons for designation. The central issues were whether the officer’s report supplied adequate reasons and whether the Council could rationally treat continued railway use as more important than retaining non-listed buildings.

1. Ground 1 dismissed. The Council accepted a technical breach of regulation 24(1)(c)(iv) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, because the decision materials did not explain the right to challenge the decision. That omission was purely procedural. It could not have affected the substance of the decision and caused no prejudice to a claimant who had legal advice and brought the claim. Relief was therefore refused.
2. There was no failure to provide the main reasons under regulation 24(1)(c)(ii). Following R (on the application of CPRE Kent) v Dover District Council [2017] UKSC 79, a separate document is not essential where the committee grants permission in accordance with the officer’s recommendation and adopts the reasoning in the officer’s report. The report contained the relevant reasons and information about public participation. The committee’s unamended resolution adopted the recommendation.
3. The court rejected an attempt to infer the committee’s reasons from individual comments recorded in the minutes. A planning committee acts collectively by resolution. In the absence of bad faith, a forensic investigation of individual members’ reasons is generally inappropriate. The resolution, rather than isolated contributions to debate, was the proper focus.
4. Grounds 2 and 3 also failed. Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires attention to the character or appearance of the conservation area. “Character” is broader than visual appearance and can include historic uses and their contribution to the area’s understanding and experience. The statutory language gives no priority to built fabric over historic use.
5. The officers were entitled to conclude that continued railway use made an important contribution to Wolverton’s significance and could rationally give that use greater weight than retaining non-listed buildings. The designation documents recognised the relationship between the town and the railway. The assessment of substantial harm and public benefits under paragraph 133 of the National Planning Policy Framework was therefore lawful. Permission to amend the claim to add Ground 3 was granted, but that ground also failed. The judicial review claim was dismissed on all three grounds.

The claim was commenced in the Administrative Court on 31 January 2018. On 23 March 2018 Holgate J granted permission solely on Ground 2. The claimant renewed permission for Ground 1, and sought permission to amend the claim to add Ground 3. The rolled-up hearing before Dove J granted permission for Ground 3 but dismissed all three grounds on their merits.