Risby v East Hertfordshire District Council & Ors

Where development causes harm to a conservation area, section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires that harm to be given considerable importance and weight. It creates a strong but rebuttable presumption against permission, rather than treating preservation as an ordinary material consideration. A planning authority may change its view on a later application, including after an earlier decision has been quashed, but it must take the earlier reasoning into account where relevant and explain any material departure. An officer’s report is read as a whole for an informed readership. The decision is unlawful only where the advice materially misleads members and the outcome might thereby have been different.

The claimant challenged the Council’s grant of planning permission to itself for a multi-storey car park and associated development in a conservation area. An earlier permission for a materially similar scheme had been quashed by consent because the Council’s consideration of section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 had addressed character but not appearance.

The claimant alleged that the Council failed to take the earlier finding of harm into account, failed to give adequate reasons for changing its view, and misdirected committee members on the statutory planning balance. The central issues were whether the earlier advice remained a material consideration, whether the later officer’s report adequately explained the different conclusion, and whether members received legally sufficient guidance.

1. Claim dismissed. The Council lawfully determined the amended application.
2. Under section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, where harm to a conservation area is found, the statutory duty creates a strong but rebuttable presumption against permission. The harm must receive considerable importance and weight. It is not merely an ordinary material consideration. The same approach applies whether the harm is substantial or less than substantial.
3. A previous planning decision may be a material consideration because consistency extends to the reasoning underlying decisions. A decision that has been quashed has no legal effect on the parties and does not bind the later decision-maker, but it may still require consideration. The decision-maker must understand the basis of the earlier decision and explain any material disagreement, particularly where the schemes are similar and the inconsistency is apparent.
4. The Council had adequately addressed the earlier decision. The officer’s report explained that the earlier permission had been quashed because appearance had not been expressly considered, referred members to the earlier report and court order, and identified the changed policy context and two new heritage assessments. The earlier report was included among the essential reference papers.
5. The report and meeting transcript adequately explained why officers differed from the conservation adviser. The analysis of scale, location, screening and visibility supported the conclusion that the amended scheme caused no harm. The Council was not required to preserve a view expressed in the earlier, confused report.
6. The written report accurately explained the statutory duty, including the requirement to give considerable importance and weight to heritage conservation. Statements at the meeting about weighing harm against benefits did not contradict or undermine that written guidance. The members were not materially misdirected.

The judgment records that an earlier planning permission for a similar scheme was quashed by consent on 30 January 2019 because the Council had not expressly addressed appearance under the Planning (Listed Buildings and Conservation Areas) Act 1990. The present claim concerned the Council’s subsequent redetermination.