Challenge to Leicestershire housing development

On 15 September 2023 the Planning Court has granted a judicial review on two grounds against the decisions of Blaby District Council to grant (1) planning permission for 13 dwellings and (2) listed building consent for the demolition of a curtilage listed former milking shed in Braunstone, Leicestershire.

The development site is adjacent to a Grade II listed 16th/17th Century farmhouse (the Claimant’s home) and includes part of its original curtilage within the site boundary, including a former milking shed which is curtilage listed under section 1(5)(b) of the Planning (Listed Buildings and Conservation Areas) Act 1990. The northern side of Braunstone Lane, opposite the Listed Building, falls within the Braunstone Conservation Area, and there are proposals, supported by the Council, to extend the Conservation Area to include the southern side of Braunstone Lane, which would include the development site.

Permission had previously been granted by Mr Justice Eyre on one ground only on the paper application and refused on the remaining three grounds. The Claimant renewed his application for permission on the refused grounds to an oral hearing and was granted permission on all remaining grounds by HHJ David Worster.

The claim proceeded to a substantive hearing in August 2023 before judge Worster. Following a one-day hearing, including the rare taking live oral evidence on the unlawful exclusion of a member of the planning committee from voting on the application, HHJ Worster found for the claimant on grounds 1 and 4 and quashed the consents. The Council conceded during oral submissions that the Chair’s advice to members on NPPF section 196 to disregard the neglect concerns raised by the claimant was unlawful. This is explained in the judgment at paras 33-42.

The Council’s planning committee chair unlawfully advised the committee that deliberate neglect as a cause of the building’s poor state was not a material planning issue: The chairs advice is recorded in the judgment at 36:

But that’s not a planning application issue. That’s for a tenancy agreement or a landlord – Cat [a planning officer] would you like to come in?

I would concur with what Cllr Richardson has said with regard to that. With regard to the condition of a building in private ownership, the responsibility is on the owner or the tenant…  It’s not something we get involved in.

On exclusion of Cllr Moitt from voting on the application, the court held that the monitoring officer’s advice to Cllr Moitt shortly before the meeting was to convene was given on the mistaken premise that Councillor Moitt had voted against this application at a Town Council Committee meeting, when he had not. This is how the Judge characterised the legal error as a. matter of procedural unfairness [32]:

Councillor Moitt made the decision not to attend and vote in all good conscience, relying reasonably on the mistaken advice given to him by the Council’s officer. He was plainly entitled to attend and vote, and but for this advice, he would have done so. That is a material error in the decision making process. Councillor Moitt was significantly misled by the advice he received, and in the circumstances, that is sufficient to justify the Court setting aside the Council’s decisions on this application. But for this advice he would have contributed to the debate and voted. The error renders the procedure unfair.

The four grounds of claim were:

• Ground One: The Officers Reports in respect of both applications significantly misled the Planning Committee by failing to consider paragraph 196 of the National Planning Policy Framework, which states that evidence of deliberate neglect or damage to a heritage asset should not be taken into account in any decision.
• Ground Two: The Officers Reports significantly misled the Planning Committee by failing to apply section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.
• Ground Three: Members were significantly misled by being told – at the Planning Committee meeting – to disregard, or instructed that they could give no weight to, an emerging Conservation Area designation which would include the development site.
• Ground Four: A member of the Council’s Planning Committee was erroneously told that he could not determine the applications on the basis of purported predisposition.

Andrew Parkinson of Landmark Chambers was instructed.