Liverpool Open And Green Spaces Community Interest Company, R (On the Application Of) v Liverpool City Council

In a planning decision affecting listed buildings and their settings, the decision-maker must give considerable importance and weight to preservation, and must not treat less than substantial harm as a merely limited objection. An officer’s report may be read benevolently, but a substantial doubt that the statutory duty was properly performed will invalidate the decision.

The meaning of a development-plan policy is a question of law. Where development conflicts with a policy protecting open character, the conflict must be expressly acknowledged. Planning judgment cannot be used to avoid that conclusion. The authority must then decide whether there is good reason to depart from the development plan.

The claimant brought two judicial review claims challenging planning permissions granted by Liverpool City Council. One permission authorised the relocation of a miniature railway. The other authorised 39 dwellings and the conversion of a listed house and grounds into apartments.

The challenges concerned the treatment of heritage assets, the interpretation of saved policy OE3 of the Unitary Development Plan, an alleged material error concerning the site’s status as part of Calderstones Park, recreational-use evidence, and reliance on relocation of existing facilities.

The central issues were whether the Council’s officer’s report materially misled the planning committee and whether the statutory test for withholding relief was satisfied.

1. Heritage assets. The officer’s report referred to section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and to the relevant NPPF provisions. Ordinarily that would support an inference that the duty had been performed. Here, however, the inference was rebutted. The report omitted the conservation team’s strong internal objection and repeatedly described the balancing exercise without referring to the requirement to give great weight to conservation. This created a substantial doubt that the statutory duty had been properly applied.
2. Policy OE3. The proposals adversely affected the open character of the Green Wedge and therefore conflicted with policy OE3(i). The safeguards in OE3(ii) did not disapply or override that prohibition. The Council was wrong to assess whether the impact was undue, or whether the affected area was a small proportion of the wider Green Wedge, before acknowledging the conflict.
3. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the conflict had to be openly acknowledged. If the Council nevertheless proceeded, it had to do so for good reason and in full knowledge of the departure from the development plan.
4. The site-status ground failed. The report should have explained that a public park differs from ordinary private land, but the committee knew the relevant geography and history, undertook a site visit, and would highly likely have reached the same decision. The recreational-use and relocation grounds also failed because the Council was entitled to assess the likelihood of successful relocation, which was secured through a section 111 agreement and planning conditions.
5. The errors concerning heritage assets and policy OE3 were material. It was not highly likely that the outcome would have been substantially the same under section 31(2A) of the Senior Courts Act 1981. Both planning permissions were quashed.