James Hall and Company Ltd, R (on the application of) v Co-Operative Group Ltd & Anor

Where proposed development may affect the setting of a heritage asset, the decision-maker must identify and assess the significance and impact, and undertake any required balancing exercise. That evaluative task belongs to the planning committee, not merely to officers. Minimal or negligible harmful impact is still within the less than substantial harm category; there is no separate intermediate category of negligible harm that can be disregarded. The minimum requirement under paragraph 189 of the National Planning Policy Framework is consultation of the relevant historic environment record. A condition added after the committee’s resolution, without authorisation from the decision-maker, is ultra vires.

The claimant sought judicial review of the Council’s decision to grant planning permission for demolition of a fire station and construction of a food retail unit near the Haworth Conservation Area and a listed building. Three grounds were advanced: failure to assess the development’s impact on the conservation area and its setting; unlawfulness of additional wording inserted into four conditions after the planning panel’s resolution; and failure to consult the relevant historic environment record as required by paragraph 189 of the National Planning Policy Framework.

The Council relied on officers’ alleged assessments and argued that any failure was immaterial. The central questions were whether the Area Planning Panel had been given sufficient information to exercise its planning judgment and whether the statutory materiality test prevented relief.

1. Ground 1 succeeded. The Area Planning Panel was the decision-maker. The officer’s report merely recorded that the site was adjacent to, but outside, the Haworth Conservation Area. It did not identify the conservation area as a heritage asset, assess its significance or setting, assess the development’s impact, or invite the panel to weigh any harm against the public benefits. The panel therefore had no proper opportunity to exercise the planning judgment required by paragraphs 189, 190, 193, 194 and 196 of the National Planning Policy Framework. Officers’ undisclosed conclusions could not substitute for the panel’s decision.
2. The court distinguished R (oao Graham Williams) v Powys County Council [2017] EWCA Civ 427 and applied the principle that the decision-maker must confront the effect on a heritage asset’s setting where the issue arises. Obar Camden Ltd v Camden LBC [2015] EWHC 2475 (Admin) supported the conclusion that the significance of affected heritage assets and the relevant policy considerations must be addressed. Pagham Parish Council v Arun District Council [2019] EWHC 1721 (Admin) was distinguished because the report there had expressly addressed the heritage impact and furnished the committee with the information needed to decide the issue.
3. Minimal harm falls within the broad category of less than substantial harm. The National Planning Policy Framework recognises only substantial harm, less than substantial harm and no harm. Limited or negligible harm affects the weight given to it, but does not create a separate category that may be ignored.
4. Ground 2 succeeded. The words “unless otherwise agreed in writing” were added to four conditions after the panel’s resolution, without any further decision or material intervening between resolution and the decision notice. They were therefore ultra vires. If that had been the only successful ground, excision would likely have been appropriate, consistent with R (oao Midcounties Co-operative Ltd) v Wyre Forest District Council [2009] EWHC 964 (Admin).
5. Ground 3 succeeded. The relevant historic environment record had not been consulted. The evidence did not establish its contents or show that consultation would necessarily have made no difference. The court could not conclude under section 31(2A) of the Senior Courts Act 1981 that the outcome would highly likely have been substantially the same.

All three grounds were proved. The planning permission was quashed.

First-instance judicial review. No earlier decision in the same proceedings is stated in the judgment.