Court of Appeal quashes permission over failure to consult Victorian Society

This article originally appeared in the IHBC NewsBlogs.

In July 2016, The Court of Appeal allowed an appeal against a scheme as Rother District Council had implied that the Victorian Society had had no comment when it had not in fact been consulted, so the Court of Appeal held that planning committee members had been significantly misled by this.

Robert Tranter, Solicitor, Monitoring Officer and Head of Legal Services, Monmouthshire County Council, wrote:

The Court of Appeal has quashed the grant of planning permission for a development on the site of a bowling club over the local authority’s failure to consult the Victorian Society and an officer’s misleading advice.

The case of Loader, R (On the Application Of) v Rother District Council & Anor [2016] EWCA Civ 795 concerned a challenge to Rother DC’s decision to approve the development of 39 sheltered apartments on the site in Bexhill comprising open space, within the setting of a grade II listed building.

A High Court judge, Mrs Justice Patterson, had previously refused to quash the planning permission.

Lord Justice Lindblom said the case went to the authority's understanding and application of relevant government policy in paragraph 74 of the National Planning Policy Framework (‘NPPF’), and to the consequences of its failure to notify English Heritage and the Victorian Society of the proposal before determining the application for planning permission.

The Court of Appeal allowed the appeal but only on the ground of the failure to consult the Victorian Society.

Lord Justice Lindblom said: ‘The council plainly thought it necessary to obtain the Victorian Society's views on this proposed development. One can understand why. The Victorian Society had objected to the previous proposal. They had criticized the design of the development, and expressed concern about its likely effect on ‘the Victorian character of the area’ and its ‘detrimental impact upon the setting of the Grade II listed terrace’. These concerns were reflected in the inspector's decision dismissing the appeal.

‘Had the defects in the design now been overcome by the changes made to the design in this proposal? This was an important question for the council in the decision it now had to make. Not surprisingly, it saw the need to seek the Victorian Society's view, even though it was not statutorily obliged to do so. Their view, whatever it might be, would assist the Planning Committee in the exercise of its own planning and aesthetic judgment.’

Lord Justice Lindblom added that by the time Rother’s Planning Committee met to make its decision on the application for planning permission, the council had failed to consult the Victorian Society, and at least one of its officers knew it had failed.

‘The officer given the task of consulting the Victorian Society had sent the consultation letter to a disused e-mail address, had got an automatic response telling him so, and then not sent the consultation letter to the e-mail address given in the automatic response. So, in fact, there had been no consultation of the Victorian Society on this proposal, and the officer responsible for undertaking that consultation knew that,’ the judge said.

‘…Therefore, in its context, which was the section of the officer's report devoted specifically to ‘Consultations’, the note ‘Victorian Society: No comments received’, though factually correct, was nonetheless misleading. No one has suggested, or could, that it was intentionally so. Bad faith is not alleged. The officer responsible for preparing the report could not simply have said ‘No comments received’ if he was aware that the Victorian Society had had no opportunity to comment.

‘Obviously, however, the absence of any comment from the Victorian Society – positive, negative, or neutral – was seen by the officer as significant enough to mention in his report, instead of simply saying nothing. It was, he thought, something the members should have in their minds. It was, in his view, significant. This much seems plain. But anyway, there can be no doubt that, left uncorrected, the implication of the words ‘No comments received’ could only be that the Victorian Society had been consulted on this proposal, had considered it, and had concluded they did not wish to object to it. This was the impression the committee was given. It was false.’

Lord Justice Lindblom said there could be ‘no question but that the mistake made by the officer in his report was, in its context and circumstances and in its possible consequence, sufficiently misleading to invalidate the committee's decision’.

The Court of Appeal judge added: ‘It was ‘significantly’ – or ‘seriously’ – misleading on a material matter, and it was left uncorrected before the decision was taken. In the context of the duty in section 66(1) of the Listed Buildings Act, the committee was misinformed on the consultation of a national amenity society, which had been an objector to a similar proposal, and whose views on this application the council had chosen to seek and might have made a difference to its decision

‘In taking this misinformation into account, it could be said to have proceeded on the basis of an error of fact. But I think the unlawfulness here is better described as the taking into account of an immaterial consideration.

‘What the Victorian Society would have said if they had been consulted by the council we do not know. It is impossible to say that their view on the revised proposal would have made no difference to the council's decision. There is therefore no scope here for withholding relief in the exercise of the court's discretion.’

Read the judgment at http://www.bailii.org/ew/cases/EWCA/Civ/2016/795.html