JH And FW Green Ltd R (On the Application Of) v South Downs National Park Authority

When reviewing a planning officer’s report, the court must read it fairly and as a whole, allowing for the knowledge of the committee and the flexible nature of planning judgment. A report is legally deficient only where its overall effect significantly misleads the decision-maker about a material matter left uncorrected before the decision.

“Major development” in paragraph 116 of the NPPF has its ordinary meaning. Whether a proposal is major is a matter of planning judgment, informed by its scale, character, nature, potential impacts and local context. Classification under the Town and Country Planning (Development Management Procedure) Order 2015 does not determine the separate NPPF question.

Under paragraph 134 of the NPPF, optimum viable use is one public benefit to be weighed against heritage harm. A merely speculative alternative use is not viable, and identifying an optimum viable use does not automatically require refusal.

The claimant, a local landowner, sought judicial review of the Defendant’s grant of planning permission and listed building consent for the redevelopment of Madehurst Lodge, a Grade II listed building in the South Downs National Park, as a hotel and restaurant.

The challenge alleged that the officer’s report misapplied paragraph 116 of the NPPF by failing to treat the proposal as major development, and misinterpreted paragraph 134 by failing to consider continued residential use as the optimum viable use. The Interested Party was the applicant for the permissions. The central issue was whether the report, read fairly and as a whole, materially misled the planning committee or contained an error affecting its decision.

1. Outcome. The claim for judicial review was dismissed. The challenge to the planning permission and listed building consent therefore failed.
2. The court adopted the approach in R (Midcounties Cooperative) v Forest of Dean DC [2014] EWHC 3059 (Admin), Barwood Strategic Land II LLP v East Staffordshire DC [2017] EWCA Civ 893 and R (Morge) v Hampshire County Council [2011] UKSC 2. Planning reports are addressed to a knowledgeable readership. Excessive legalism is inappropriate, and the court must not substitute its own planning judgment for that of the elected decision-maker.
3. Paragraph 116 of the NPPF contains no definition of “major development”. The question is one of planning judgment, applying the ordinary meaning of the words in the circumstances and local context. The relevant question was whether the proposal, by reason of its scale, character or nature, had the potential for a serious adverse impact on the natural beauty, recreational opportunities, wildlife or cultural heritage of the National Park. The Order’s separate classification of the site as major development did not determine that question. Here, the committee knew the site’s size, location, rural context and proposed works, and the report adequately addressed the relevant consultation responses and potential impacts.
4. The report’s conclusion that the development was not major development under paragraph 116 was therefore lawful. The distinction between potential and likelihood of harm was immaterial in the circumstances.
5. Paragraph 134 requires less than substantial harm to a designated heritage asset to be weighed against the public benefits of the proposal, including securing its optimum viable use. The court agreed with the approach in R (Gibson) v Waverley Borough Council (No. 1) [2012] EWHC 1472 (Admin) and R (Gibson) v Waverley Borough Council (No. 2) [2015] EWHC 3784 (Admin), subject to the qualification that an optimum use is not necessarily determinative where comparative balancing favours another proposal. A speculative alternative is not a viable use.
6. The asserted continued residential use was supported only by anecdotal claims and no realistic purchaser or planning proposal. The report was entitled to give those assertions limited weight and to treat the hotel proposal as the optimum viable use. Any error in the wording of the report was immaterial in context. The court also considered that, in any event, the outcome would highly likely have been the same under section 31(2A) of the Senior Courts Act 1981.