Challenge to self-build houses in historic setting

Richard Buxton Solicitors were successful in a s288 claim and quashing of the decision of the Secretary of State to grant development consent for self-build houses in the setting of the Claimant’s grade II* listed house, Caxton Hall on the basis of an error of fact as to a non-existent Flood Risk Assessment (FRA) relied on by the Inspector in relation to flood risk.

The case raised two grounds: The first was the mistake of fact under the well-trodden case of E because the Inspector erroneously relied on the Flood Risk Assessment (FRA) which the local planning authority confirmed was non-existent. The S/S admitted the error was made and that the error was not the fault of the claimant but argued the error did not matter to the outcome as the Inspector took account of the claimant’s objections of increase flooding risk to his home and that there was a condition to the consent to deal with drainage. The judge disagreed and held:

“My finding that the inspector took account of the representations made by the local residents is not sufficient to dispose of Ground 1. The second sentence of the Decision Letter at para 25 contains a mistake of fact, namely the statement that a flood risk assessment has been submitted, and that the drainage officer was satisfied with that information, subject to conditions. The question for the court to consider is whether that mistake played a material (not necessarily decisive) part in the inspector’s reasoning.”

Ultimately the Court held the mistake of fact that the FRA had been done when it had not been done played a material part in the Inspector’s reasoning and quashed the decision.

On ground two in relation to heritage impacts the claimant argued the Inspector breached the duty imposed by section 66(1) by failing to give careful consideration to the assessment of harm to the Grade II* listed Caxton Hall and its setting. In addition to arguing the normal risk of harm to the setting caused by new development in proximity to the heritage asset, the claimant further argued the possibility of increased flooding put at risk harm to the heritage significance of his listed property. The Court disagreed there had been a breach of the s66 duty because inspector found the setting of Caxton Hall would be preserved.

The case raised a second heritage point and novel issue on the duty under the Development Management Procedure Order (the DMPO) because the Inspector failed to notify Historic England (HE) of the appeal application, being an application for planning permission which would affect the setting of a Grade II* listed building where the LPA had failed to consult HE. In short the judge reached the view there is no implied duty in the DMPO for a planning inspector to consult HE where the LPA had failed to do so.