Spitfire Bespoke Homes Ltd v Secretary of State for Housing Communities And Local Government

Under section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, the decision-maker must assess the overall effect of the proposed development on the conservation area. The assessment is not confined to the building or buildings on the development site, nor must demolition and replacement be considered through a mandatory two-stage process. The decision-maker may evaluate separately the positive, negative and neutral elements of an existing building as part of the overall planning judgment. Procedural fairness requires that a party knows the case it must meet and has a reasonable opportunity to respond. It does not require a second opportunity to address the same objection or require an inspector to invite further mitigation proposals before deciding the appeal.

The claimant sought statutory review under section 288 of the Town and Country Planning Act 1990 of an inspector’s dismissal of its planning appeal. The proposed development involved demolishing buildings at Huntley Lodge in the Royal Leamington Spa Conservation Area and constructing two houses and six apartments.

The claimant alleged that the inspector had misapplied section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 by focusing on the positive contribution of the historic part of Huntley Lodge rather than the existing building as a whole. It also alleged procedural unfairness because the council raised inadequate amenity space late in the appeal. The court considered the proper approach to the conservation-area assessment and whether the claimant had a fair opportunity to respond.

1. The claim for statutory review was dismissed. The inspector’s decision was not vitiated by error of law or procedural unfairness.
2. Section 72 requires special attention to the desirability of preserving or enhancing the character and appearance of the conservation area. This imposes a strong statutory presumption against permission for development that would fail to preserve those characteristics. The assessment is an overall planning judgment, including the existing character and appearance of the conservation area, the fit of the proposed development, and whether the overall effect is positive, negative or neutral. The inspector was entitled to consider the wider street scene and the positive contribution of particular elements of the existing building.
3. Bohm v Secretary of State for Communities and Local Government [2017] EWHC 3217 (Admin) rejected a mandatory two-stage analysis separating demolition from replacement. It did not prescribe how the holistic assessment had to be conducted. The inspector’s finding that the proposed replacement was harmfully out of keeping with the conservation area was a planning judgment open to challenge only for legal error.
4. The inspector had considered the relevant policy, the National Planning Policy Framework and section 72 separately but coherently. Even if the existing building had been treated as making a negative rather than positive contribution, the proposed replacement buildings were independently sufficient to justify refusal.
5. Procedural fairness required the claimant to know the case it had to meet and have a reasonable opportunity to respond. It had that opportunity in relation to the late amenity-space objection and used it. The inspector was not required to give a second opportunity to propose mitigation, such as an off-site contribution or a planning condition. Any possible mitigation would at most have neutralised that objection and could not have overcome the heritage and conservation objections.

First-instance statutory review under section 288 of the Town and Country Planning Act 1990. The claim challenging the planning inspector’s decision was dismissed.