Widdington Parish Council, R (on the application of) v Uttlesford District Council

In assessing a planning fall-back, the decision-maker must establish the lawful development capable of being undertaken, assess whether there is a real prospect of it occurring, determine its likely probability, and compare its planning consequences with the proposed development where the circumstances require. The analysis must distinguish between different potential permitted-development uses and must not treat a lawful access as a generic right detached from the use for which it is authorised.

Planning committees must also receive coherent guidance on heritage harm and on the sequential relationship between the heritage balance and the tilted balance under the NPPF. An officer’s report cannot be rewritten through benevolent interpretation where its reasoning is internally contradictory.

The claimant sought judicial review of the defendant local planning authority’s decision to grant permission for four dwellings on land at Widdington. The challenge concerned the treatment of a lawful development certificate as a fall-back, heritage impacts, consistency with an earlier refusal, and alleged reliance on appeal costs.

The local authority had previously refused permission for a substantially similar scheme. It later granted permission after changes to one dwelling and additional landscaping. The committee was divided equally and permission was granted on the chair’s casting vote. The central issues were whether the committee had been lawfully directed on the fall-back and heritage balances, whether adequate reasons were given for departing from the earlier refusal, and whether appeal costs were wrongly considered.

1. Claim allowed in part. Grounds 1 and 2 succeeded in part; grounds 3 and 4 failed. The planning permission was quashed.
2. A fall-back could be a material consideration only after identifying the lawful development, establishing at least a real prospect that it would occur, assessing its degree of probability, and considering the planning implications of the fall-back against those of the proposed development. The lawful development certificate authorised an access required for a market. It did not establish a free-standing right to construct the access independently of that use.
3. The officer’s report and oral advice materially conflated the market fall-back with other possible permitted-development uses. Members were not directed to consider which uses were contemplated, how likely they were to occur, or what access each would require. The statement that the access could be constructed immediately was an inadequate and materially misleading simplification.
4. The report was internally inconsistent concerning harm to listed buildings. References to less than substantial harm and a high level of harmful impact could not properly be rewritten as findings of no harm. The conclusion that the significance of all listed buildings would be preserved did not follow from the preceding analysis.
5. Where the NPPF’s heritage policies are engaged, the decision-maker must first consider whether the less than substantial harm to a heritage asset is outweighed by the public benefits under paragraph 11(d)(i). Only if that limb does not provide a clear reason for refusal does the tilted balance under paragraph 11(d)(ii) arise. The committee was not properly directed on this sequence.
6. The consistency principle applied because the current and previous applications were sufficiently similar. Nevertheless, the reasons for the different outcome were apparent from the officer’s report and discussion, including the differences in the schemes, the previous refusal having been contrary to officer advice, and the fall-back issue. There was no separate error under ground 3.
7. The reference to unreasonable behaviour and costs was properly understood as guidance against deferring the application, rather than as reliance on an immaterial consideration. Relief was not refused under section 31(2A) of the Senior Courts Act 1981 because it was not highly likely that the same outcome would have followed from lawful guidance on the fall-back and heritage issues.

First-instance judicial review claim in the High Court (Planning Court). The judgment records that permission to proceed was granted by Lang J on 26 January 2023.