Safe Rottingdean Ltd v Brighton And Hove City Council

An officer’s report must be read as a whole. Planning policies may require an overall judgment which weighs beneficial and adverse effects, rather than separate findings under every policy. The statutory duties concerning listed buildings and conservation areas do not require express citation if the report demonstrates that the relevant objectives received special attention and considerable importance and weight. Less than substantial harm to a heritage asset must still be weighed against public benefits, including securing an optimum viable use. Section 38(6) requires an overall decision on whether the proposal accords with the development plan, but does not require a finding on every individual policy. The claimant must establish the alleged legal error on the balance of probabilities.

The claimant, a community group vehicle, challenged by judicial review the Council’s grant of planning permission for 93 dwellings and associated works at the former St Aubyn’s School in Rottingdean.

The site included Grade II listed buildings, curtilage-listed structures, a conservation area and playing fields outside but affecting the conservation area’s setting. The challenge alleged that the officer’s report misled the Planning Committee concerning local heritage policies, sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, paragraph 193 of the National Planning Policy Framework, and section 38(6) of the Planning and Compulsory Purchase Act 2004.

1. The claim was dismissed. The officer’s report was sufficiently clear when read fairly and as a whole. It identified both the heritage benefits of the campus development and the less than substantial harm caused by development on the playing field.
2. Policies HE3 and HE6 did not require the adverse effects to be considered in isolation. The report was entitled to reach an overall planning judgment. The significant benefits to the listed building, its setting and the conservation area outweighed the more limited harm. There was therefore no overall breach of those policies.
3. Sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 did not need to be expressly cited. The report gave special attention to the statutory objectives and gave the heritage benefits considerable importance and weight. Section 72 applies to buildings or land in a conservation area; harm to the setting of land outside the area is not within its statutory scope, although it remains a material planning consideration.
4. Paragraph 196 of the Framework requires less than substantial harm to a designated heritage asset to be weighed against public benefits, including its optimum viable use. That exercise is distinct from deciding whether there is an overall adverse effect under local policy. Paragraph 193’s requirement to give great weight to conservation was plainly reflected in the report.
5. Section 38(6) requires a decision whether the proposal accords with the development plan as a whole. It does not require an express conclusion on every policy. Policies may be considered in groups, and a proposal may accord with the overall thrust of a policy despite technical non-compliance with its wording. The report identified the limited policy conflicts and conveyed an overall conclusion of development-plan compliance.
6. The claimant had to establish the alleged failure to perform the statutory duties or apply the Framework on the balance of probabilities. A substantial doubt falling short of that standard was insufficient.

The application for judicial review was dismissed.