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

A development-plan policy for a Green Wedge must be construed from its own language and context. A policy protecting a Green Wedge’s predominantly open character does not necessarily impose the stringent regime applicable to Green Belt development. It requires a planning judgment on the proposal’s effect on the Green Wedge as a whole, including the site’s character and physical and visual effects.

Built development which satisfies the policy’s general restriction must also meet its specific design and openness criteria. Separately, a planning authority considering development affecting a listed building’s setting must give considerable importance and weight to preservation. A detailed conservation objection which is not put before the decision-making committee can create substantial doubt that the statutory duty was performed.

The City Council appealed against the decision of Kerr J in the Planning Court, [2019] EWHC 55 (Admin), which quashed two planning permissions. One permitted housing development and conversion works involving grade II listed buildings at Beechley House and Beechley Stables within the Calderstones/Woolton Green Wedge. The other permitted relocation of a miniature railway within the Green Wedge.

The claimant community-interest company had challenged both permissions. The High Court found that the Council had misinterpreted saved Policy OE3 of the Liverpool Unitary Development Plan and, in respect of the housing scheme, had failed to comply with the listed-building duty. Although the developer withdrew its own appeal, the court heard the Council’s appeal because the interpretation of Policy OE3 had wider public importance.

1. Appeal allowed in part. The court set aside the quashing of the permission for relocation of the miniature railway, but dismissed the appeal concerning the housing development. The planning permission for that development therefore remained quashed.

2. The appeal could properly be heard despite being academic between the parties. The interpretation of Policy OE3 was a point of public importance. The claimant could be protected as to costs, and the issues had been fully argued. The listed-building issue alone lacked wider significance, but it had to be determined because success on both grounds was necessary to restore the housing permission.

3. Policy OE3 was not a Green Belt policy and did not create an absolute prohibition on new built development. Its protection of a Green Wedge’s predominantly open character was a qualified concept. Under subparagraph i, the decision-maker had to judge whether the proposal would adversely affect that character or reduce physical separation between built-up areas. An increase in built development did not automatically establish unacceptable impact or conflict with the policy.

4. That assessment was a planning judgment. It could take account of the Green Wedge as a whole, the site’s existing development and openness, its proportion of the Green Wedge, and the proposal’s physical and visual consequences. The officer had lawfully undertaken that assessment and reached a rational conclusion that the two proposals complied with subparagraph i. For built development, subparagraph ii applied in addition to, rather than instead of, subparagraph i; the officer had lawfully addressed both.

5. However, in determining the housing application, the Council failed to comply with section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. Its specialist conservation team had made a detailed objection to three houses in the setting of Beechley House and the ha-ha. That objection was an obviously material consideration, but was neither reported to nor considered by the Planning Committee. The omission disregarded relevant expertise and gave substantial doubt that the statutory duty to have special regard to preservation had been discharged. The absence of advice that harm required considerable importance and weight reinforced that conclusion.

6. The court could not conclude under section 31(2A) of the Senior Courts Act 1981 that the outcome would highly likely have been no different had the committee considered the objection with appropriate weight.

• Court of Appeal (Civil Division): Allowed the Council’s appeal only as to the miniature-railway permission. It upheld the quashing of the housing permission: [2020] EWCA Civ 861.

• High Court, Administrative Court, Planning Court: Kerr J quashed both planning permissions after upholding the challenges based on Policy OE3 and, for the housing permission, section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990: [2019] EWHC 55 (Admin).