Wyeth-Price, R (On the Application Of) v Guildford Borough Council

A planning committee must be properly directed on the statutory and policy weight to be given to harm affecting listed buildings and their settings. A report which refers to the statutory duty and to the balancing exercise may nevertheless be materially misleading if it omits the requirements to give considerable importance and weight to heritage harm, great weight to conservation, and clear and convincing justification for harm. The court will not re-weigh planning merits. It will intervene where an officer’s advice materially misleads the committee and the decision might otherwise have been different. Expert disagreement about a veteran tree or groundwater risk does not itself establish unlawfulness where the issues were investigated, reported and rationally resolved.

The claimant sought judicial review of Guildford Borough Council’s decision to grant Bewley Homes Limited planning permission for 73 dwellings at Ash Manor, Ash Green. The site was adjacent to Grade II* and Grade II listed buildings and included a pond and a tree identified by a consultee as potentially veteran. The claimant alleged failures to apply the statutory heritage duty and national planning policy, to consider advice about the tree, and to address flooding evidence. The central issues were whether the planning officer’s reports materially misled the Planning Committee and whether the Council’s conclusions on the tree and drainage evidence were irrational.

1. Ground 1 succeeded. The claim was allowed and the planning permission was quashed. The officer’s reports materially misled the Planning Committee about the heritage balance, and the decision might have been different if the committee had been properly advised.
2. Under Planning (Listed Buildings and Conservation Areas) Act 1990, s 66(1), a finding of harm to a listed building or its setting must receive considerable importance and weight in the planning balance. The decision-maker cannot assign the harm whatever weight it considers appropriate as an ordinary matter of planning judgment.
3. National Planning Policy Framework 2019, paragraphs 193 and 194, required great weight to be given to conservation, with greater weight for more important assets, and clear and convincing justification for harm. Paragraph 196 required less than substantial harm to be weighed against public benefits. The officer referred to s 66(1) and paragraph 196 but omitted paragraphs 193 and 194 and did not explain the required weighting.
4. Applying Mordue, the inference that the omitted provisions had been taken into account was displaced by positive indications in the reports. The reports presented an untilted balance between less than substantial harm and public benefits, thereby repeating the error identified in Barnwell. The omission was material in a contentious application concerning a Grade II* listed building.
5. Ground 2 failed. The veteran-tree issue was adequately investigated. The officer reported the conflicting views of Surrey Wildlife Trust and the arboriculturalists, and it was rational to prefer the arboricultural evidence that the tree was notable rather than veteran, while taking account of its biodiversity value, condition and health-and-safety risks.
6. Ground 3 failed. The flooding and groundwater concerns were adequately reported and investigated. The committee was entitled to accept the Lead Local Flood Authority’s view, supported by technical evidence, that the drainage scheme did not create an increased flooding risk. The decision was not irrational.