Planning - local heritage listing; environmental impact assessments; judicial review of planning consent

Local heritage listing

While the effect of the statutory listing of a building of special architectural or historic interest is well known, local listing may not be so widely understood.

Unlike with a statutory listing, it is not a criminal offence to carry out unauthorised works to a locally listed building or structure. But, proposals to demolish such a building will meet with strong policy resistance from the planning authority.

Local listing could become another tool in the kit of those seeking to prevent development, along with Town or Village Green applications and the provisions of the Localism Act (soon to come into force) which prevent the disposal of land or buildings which are claimed to be community assets.

English Heritage have published a Good Practice Guide for Local Heritage Listing which can be accessed here.

'Salami Slicing' to avoid environmental impact assessment

Where a development proposal falls within one of the 'Schedule 2' categories in the Environmental Assessment Regulations, the developer must seek a screening opinion from the local planning authority. The authority will consider whether the development proposal would be likely to have significant effects on the environment. If the opinion is positive, the developer must carry out and submit an environmental impact assessment. If the opinion is negative, no such assessment is required.

Developers have tried to divide a project into parts, each of which would either not trigger the thresholds in Schedule 2 (and therefore not require a screening opinion), or would produce a negative opinion because the environmental effects of the development would not be significant.

The European and domestic courts have found this to be unlawful.

In R (on the application of Burridge) v Breckland District Council the claimant alleged that a developer had tried 'salami slicing' its original proposal for an anaerobic digester to produce biogas and a combined heat and power (CHP) plant which converts the biogas into electricity. The original proposal was for a single site. A second application was made for the digester to be built on the original site but for the CHP plant to be moved to a second location, linked to the first by an underground pipeline.

The court found that the two sites were interdependent and that the change was at least in part prompted by objections of the parish council. This was not a case where the developer had intentionally divided the development to avoid environmental assessment.

A second point arose from the claimant's allegation that the authority had failed to properly deal with the environmental impact of the second proposal and in particular the cumulative effects of development on the two separate sites. The authority had issued a negative screening opinion in the original application and in view of the small scale of the development of the CHP plant in the second proposal, no further screening opinion was issued.

The court held that the authority had carried out the procedures correctly in granting permission for both the original and the second applications. The authority was obliged to consider whether a proposal met the Schedule 2 criteria. Only if it did so would it be appropriate to take account of other sites in assessing the environmental impact of the proposal.

Judicial Review of Planning consent - Elementary, my dear Watson!

The High Court has quashed planning permission and listed building consent for proposals to redevelop Sir Arthur Conan Doyle's former home. The property was listed because of its historic interest and had been used as a hotel until its closure in 2005. The building was in some disrepair at the time of the planning applications in 2010.

In February 2010, the owner applied for permission to convert the property into three terraced houses with a new build three storey extension to provide five town houses. The accompanying planning statement confirmed that there was no market interest in reinstating the single dwelling house use. The council notified English Heritage but received no response.

In June, a prospective purchaser applied for permission to change the use to a single dwellinghouse. It had offered the owner £600,000 but was told that no offers were being considered.

A few days later the owner's application was reported to committee and the planning officer recommended approval on the basis that the scheme represented a financially viable proposal to ensure the maintenance of the building. The committee was made aware of the later proposal, but were advised that each application should be considered on its own merits. The committee resolved to approve the application subject to the completion of a section 106 agreement.

In August the single dwellinghouse application was granted permission. In September the section 106 agreement was completed for the owner's scheme. Permission and listed building consent were issued. Neither was referred back to committee.

Judicial review was sought on the basis that the single dwelling permission and the offer to purchase were material considerations and that the owner's application should have been referred back to committee before the permission was granted.

The court held that where there are alternative schemes which would secure viable use, the optimum use is the one which has the least harmful impact on the significance of the listed building, even where that use is not the most profitable. The single dwelling use was the optimum viable use and was a highly material consideration which the council should have considered.

Another issue was the notification to English Heritage. Although the council sent the notification, it was never received. The court found that the council had failed to meet its statutory notification obligations. It should have followed up the notification when it became apparent that English Heritage had not commented.

Finally, the owner's marketing strategy in support of its claim that there was no interest in the property as a single dwelling was flawed. It made no mention of the offer made by the prospective purchaser and the marketing was inadequate.

The court quashed the multiple-house permission and the listed building consent, so the council will be obliged to determine those applications again, this time having regard to the later single house application. Bearing in mind the court's comments on the inadequacy of the marketing report, it is highly likely that permission will be refused.

R (Gibson) v Waverley Borough Council and another

Wragge & Co's real estate specialists provide an analysis of the latest developments in car parking easements, development, restrictive covenants, land registration, contract, Green Deal and tenant insolvency.