Planning committee gave insufficient weight to harm to Listed Buildings and Conservation Area

In The Forge Field Society & Ors, R (On the Application Of) v Sevenoaks District Council [2014] the Council faced judicial review of its decision to grant planning permission for affordable housing in Penshurst a village in the High Weald Area of Outstanding Natural Beauty and the Metropolitan Green Belt. Affected by this was Forge Field, about a third of a hectare of rough grassland, sloping down from the High Street. It was in the Penshurst Conservation Area, within the settings of Star House, a grade II* listed building erected in 1610, and Forge Garage, a building in the Arts and Crafts style, listed at grade II.

The High Court said sections 66 and 72 of the Listed Buildings Act did not allow a local planning authority to treat the desirability of preserving the settings of listed buildings and the character and appearance of conservation areas as mere material considerations to which they can attach as much weight as they see fit.

An authority’s assessment of likely harm to the setting of a listed building or to a conservation area was a matter for its own planning judgment. But when an authority finds that a proposed development would harm the setting of a listed building or the character or appearance of a conservation area, it must give that harm considerable importance and weight.

A finding of harm to the setting of a listed building or to a conservation area gives rise to a strong presumption against the grant of planning permission. The presumption is a statutory one. It is not irrebuttable. It can be outweighed by powerful enough material considerations.

But an authority can only appropriately strike the balance between harm to a heritage asset on the one hand and planning benefits on the other if it is conscious of the statutory presumption in favour of preservation and if it demonstrably applies that presumption to the proposal it is considering.

It was clear from the final sentence of paragraph 166 of the planning committee report, that the planning officer, reporting to the Council’s planning committee, weighed benefit against harm without considering whether the benefit was sufficient to outweigh the strong presumption against planning permission being granted.

It would have been open to the Council to conclude that, in spite of the statutory presumption in sections 66 and 72 of the Listed Buildings Act, the policy presumption in Policy SP4 should in this case prevail. Indeed the officer tested the impact on heritage assets by the test of “overriding” harm in Policy SP4(c).

However the reference in that policy to “overriding … conservation … impacts” did not weaken the statutory presumption in sections 66 and 72 when it applies.

Any decision by the Council that Policy SP4 overrode the statutory presumptions had to be made in the knowledge that there were two presumptions at work here, not just one in SP4. In the High Court’s view the Council’s planning committee did not do that.

The court’s decision on this ground alone was sufficient to see the planning permission quashed.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.