Keith Garner is considering an appeal after the High Court rejected his legal challenge to the redevelopment of a site on the opposite bank of the Thames from Hampton Court Palace.
The Court of Appeal granted Garner a protective costs order last year to fight the case, in a ruling which had much wider implications for environmental claims (see solicitorsjournal.com, 20 September 2010).
Elmbridge Council granted planning permission in 2009 to Gladedale Group for a mixed-use development on the site, including 66 residential units, a care home and a 46-bedroom hotel beside the river.
Councillors voted in favour of the scheme by 29 votes to 24, with five abstentions. Delivering judgment in Garner v Elmbridge Borough Council and others  EWHC 86 (Admin), Mr Justice Ouseley said that Hampton Court Palace was a Grade I listed building and the bridge beside it listed Grade II.
He said that under section 66 of the Planning (Listed Building and Conservation Area) Act 1990, the planning authority must have "special regard" to preserving the setting of listed buildings.
Ouseley J said that, reviewing the whole sequence of events from the planning brief to the consideration of reports from Historic Royal Palaces, to the detail of the planning application and the way in which councillors visited the site and were advised, he was "left in no doubt but that the desirability of preserving the setting of the palace and the bridge was one of the key issues, if not the key issue or consideration, in the decision, to which special regard was paid.
"It was not treated as just one among a large number of material considerations." Ouseley J said it would "beggar belief" for the council, dealing with a site so close to the palace and bridge, not to have had special regard to their setting.
He said the planning officer's report did not misrepresent the views of English Heritage on the ‘classical scheme', as the development by Gladedale became known.
"It treated the classical scheme as acceptable, i.e harmless, though not as beneficial as the ideal, unattainable world it would have liked." Mr Justice Ouseley said the reasons given by the council for granting planning permission were short.
"The reference to there being ‘on balance... insufficient overriding reasons' to refuse permission, is inelegant but discloses no error of law. The fact that the reasons do not refer to section 66 is not of itself an error of law.
"The reasons are broad but adequate. If inadequate for the statutory duty to give reasons, they are readily supplemented by reading the report to council." Richard Buxton, who acted for Garner, said his client was considering an appeal against a "profoundly unsatisfactory decision".
He said that although the judge found that the grant of planning permission was made correctly in law, underlying it were "alleged commercial viability reasons" which his client believed were wrong.
He added that the case had "changed the landscape of PCOs" and that Garner had become a "leading authority".
SNR Denton acted for Gladedale. Partner Stephen Webb said the ruling had clarified the scope of section 66.
"The judgment vindicates the council's approach in ensuring that the impact of the development on Hampton Court Palace was given the utmost importance in the planning determination," he said.
"This brings the much-needed development of this sensitive but underused brownfield site a step closer."