QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of
|(1) The Forge Field Society
|(2) Martin Barraud
|(3) Robert Rees)
|- and -
|Sevenoaks District Council
|- and -
|(1) West Kent Housing Association
|(2) The Right Honourable Philip John Algernon Viscount De L'Isle
Mr Alexander Booth (instructed by the Council Solicitor of Sevenoaks District Council) for the Defendant
Crown Copyright ©
Mr Justice Lindblom:
(1) whether the second planning permission was tainted by the appearance or risk of bias because when it was granted the Council was still fighting the claim for judicial review against its previous decision on the same proposal (ground 1);
(2) whether the Council failed to discharge its duties under sections 66(1) and 72 of the Listed Buildings and Conservation Act 1990 ("the Listed Buildings Act") when considering the likely effects of the development on the setting of the listed buildings and on the conservation area (ground 1A);
(3) whether the Council misdirected itself on the principles of policy for the AONB in the National Planning Policy Framework ("the NPPF") (ground 2);
(4) whether the Council failed properly to consider alternative sites for the development of affordable housing to meet the identified need (ground 4); and
(5) whether the Council's decision was irrational (ground 5).
Issue (1) – the appearance or risk of bias
"The detail of the Court proceedings is not relevant to the consideration of this planning application. The officer's report on the application that follows is based on additional information and includes additional analysis to address concerns raised through the Court process." (paragraph 9)
"As planning permission SE/11/02258/FUL is subject to a legal challenge members should approach the determination of the application as if this were the first time they have seen it. Members are specifically warned not to approach the task of determination with consistency with previous decisions at the forefront of their minds." (paragraph 10).
"Officers have adopted the approach of starting with the assumption that each of the grounds of judicial challenge has merit. Officers have then tested the application as required for each particular ground. Had the [judicial] review been decided and planning permission SE/11/02258 quashed it would still be necessary for the Council to determine SE/11/02258. That would require the officers to prepare a report that took into account the procedural irregularity that resulted in the quashing of the decision. This planning application has allowed the Council to in effect do this in advance of any decision on the merits of the challenge." (paragraph 91).
The members were told again that they should "consider the application afresh on the basis of this officer report which has been prepared with additional information over the reports on SE/11/02258" (paragraph 92).
Issue (2) – sections 66 and 72 of the Listed Buildings Act
"In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses."
"In the exercise, with respect to any buildings or other land in a conservation area, of any [functions under or by virtue of] any of the provisions mentioned in subsection (2), special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."
Among the provisions referred to in subsection (2) are "the planning Acts".
"Small scale developments for affordable housing only will be developed to meet local needs identified through rural housing needs surveys. The following criteria will be applied in identifying sites:
a. the local needs identified through the rural housing needs survey cannot be met by any other means through the development of sites within the defined confines of a settlement within the parish or, where appropriate, in an adjacent parish;
b. the proposal is of a size and type suitable to meet the identified local need … ;
c. the proposed site is considered suitable for such purposes by virtue of its scale and is sited within or adjoining an existing village, is close to available services and public transport, and there are no overriding countryside, conservation, environmental, or highway impacts[.] …".
"When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification. …"
"In the light of my previous comments and of the additional comment set out above, I consider that the proposed development would not cause substantial harm or loss of significance to the Conservation Area or to the setting of any of the listed buildings in the vicinity of the application site. This is the 'test' set out in the NPPF and relevant legislation, policies and other guidance."
"In summary, I would conclude that some harm to the character and appearance of the conservation area would occur through the interruption of views across the river valley and the loss of some open land within the conservation area as a setting to built form. In addition, some harm to the setting of Forge Garage as a listed building would occur, due to the impact of the development on the view of this property from the west. In accordance with Sections 66 and 72 of [the Listed Buildings Act], special regard must be given to the desirability of preserving surrounding listed buildings and the character or appearance of the Penshurst Conservation Area. In my opinion, the harm as identified above would be limited. The majority of Forge [Field] would remain undeveloped and as such the built form of the village would continue to enjoy an open attractive setting on the approach from the south west, and the new houses would be set back from Forge Garage, thus retaining views of the flank wall to this property. I also consider that the impact on the setting of the conservation area would be limited as the development would represent a small extension to the village, it would be seen in the context of existing built form within the conservation area, and has been well designed to respect this built form. The interruption of views would be limited and would not affect viewpoints as identified in the conservation area appraisal. Such limited harm would result in some conflict with policies EN23 of the local plan and SP1 of the Core Strategy. However, whilst having special regard to the desirability of preserving listed buildings and the character or appearance of the conservation area, I consider that the harm arising from the development would represent less than substantial harm to the significance of the heritage asset under paragraph 134 of the NPPF. This states that less than substantial harm should be weighed against the public benefits of the proposal. This balancing exercise is considered later in the report in addition to the test under SP4 as to whether such harm is overriding."
"Paragraph 134 of the NPPF states that where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use. Whilst I acknowledge the legislative duty placed on a local planning authority to have special regard to the preservation of conservation areas and listed buildings, in this instance and following the advice in paragraph 134 of the NPPF, the proposal would bring substantial public benefits through the provision of affordable local housing to meet an identified need. I consider that this benefit is capable of carrying greater weight than the limited harm identified to heritage assets, and that the impact on heritage assets would not be overriding under Policy SP4(c)."
"… I accept that … the Inspector's assessment of the degree of harm to the setting of the listed building was a matter for his planning judgment, but I do not accept that he was then free to give that harm such weight as he chose when carrying out the balancing exercise. In my view, Glidewell L.J.'s judgment [in The Bath Society] is authority for the proposition that a finding of harm to the setting of a listed building is a consideration to which the decision-maker must give "considerable importance and weight"".
Issue (3) – national policy for the AONB
"With regard to the impact upon the AONB, I have concluded that any harm to the landscape would be localised and of limited harm. Whilst I acknowledge that AONBs are afforded the highest status of protection in relation to landscape and scenic beauty", I do not consider the harm identified to be overriding under Policy SP4(c)".
Issue (4) – alternative sites
"… There is a shortage of affordable housing, in particular in rural communities in Kent such as Penshurst and [West Kent] is happy to work with anyone to produce more affordable housing to meet that need. We have successfully worked in partnership with many land owners to provide additional affordable housing.
We would be happy to work with you to see what could be done at Becket's Field, to benefit residents at Becket's Field and the wider community of the village of Penshurst. We both acknowledged the lead time that would be involved in any development. We agreed that it is important that we start working together soon, so that a development could be realised in a reasonable timescale.
In our discussion I made it clear that this offer to work with you is not conditional on the final outcome and any possible judicial review of our planning application for the development at Forge Field.
There has been much strain placed on the residents of the village during the planning process for Forge Field and Becket's Field. I would welcome the opportunity to help heal some of these wounds and would look to help set up a joint meeting with the Parish Council to help begin this process if this is the decision of you and your Trustees.
"… [The] Council continues to ignore or fail to explore the potential for a joint affordable housing development on the [Becket's] Field site/Glebelands Garages site undertaken by the [Becket Trust] and [West Kent] as originally set out in [West Kent's] letter dated 15 November 2012 [to the Becket Trust]".
The officers also seemed to have dismissed the possibility of "a compromise option on … Forge Field and the [Becket Trust] site". And there were at least four sites owned by the Penshurst Place Estate which had been dismissed as alternatives but were likely to become available for development if the present scheme was rejected. Winckworth Sherwood added:
"… [The] report and approach is fundamentally flawed in circumstances where officers have not properly explored the merits, details and timescales for a joint development on an environmentally less sensitive site at [Becket's] Field prior to determination of this application or the other alternative sites and purported reasons why a stated landowner may not be willing to develop. …".
The shortcomings in the Council's assessment of alternative sites could not be overcome by redrafting the officer's report but required "a basic[,] fair, objective and enquiring assessment of alternatives which has simply not been carried out to date".
"In my opinion, the site at [Becket's] Field is particularly limited by the small area of available and developable land, and the relationship between this land and the existing bungalows at [Becket's Field]. Whilst some objectors have suggested that an alternative scheme for [Becket's Field] could be viable, I would be concerned that there is simply not sufficient space or scope to develop this land in isolation with a sufficient number of units to meet the level of local needs housing."
"Whilst these designations are of national importance, I consider that the identified harm would not be substantial, and would not be sufficient for the development to be in conflict with Policy SP4 of the Core Strategy, or advice in the NPPF … Given my view that the development would not result in overriding impacts and would accord with Policy SP4 and government advice (relating to heritage assets), I would conclude that the potential existence of alternative sites would, in this instance, carry limited weight. In any event, no other site had been identified that is available and considered suitable by the Council to accommodate the identified need for local affordable housing. This is despite the fact that this process in Penshurst has now been ongoing since 2009."
Issue (5) – irrationality