Planning Permission for McDonald’s Restaurant Quashed

We were instructed to judicially review Dover District Council’s decision to grant planning consent for a new McDonald’s restaurant in the town. It was to be located next to Grade I listed Dover Castle, a Grade II listed medieval church, and in the vicinity of a conservation area. Despite obvious risks to the historic environment, the council agreed it had failed to properly consider heritage when it granted permission.

The application was for full permission for a new McDonald’s fast-food restaurant with drive thru facilities, car parking and landscaping works. There were three main points brought out during the consultation period that related to heritage:

• Dover Castle – the development area lay to the south of Dover Castle which is a Grade I listed building of international importance and a scheduled monument. English Heritage had noted that a historic fortified battery would be impacted by the development.
• St James’ Church – directly to the north of the development site is a ruined Norman church. It is a Grade II listed building. Expert consultees noted that in addition to the ruins themselves, the site had historically formed part of a since deconsecrated burial ground and there were active graves. There is buried archaeology at the site too which could be disturbed. More broadly, the ruin acted as a memorial to the destruction of Dover during WWII.
• Dover Castle Conservation Area – The site was close to the conservation area. There are lots of historic buildings in the conservation area (including Dover Castle itself) and the presence of a fast food restaurant could be incongruous to the buildings located there.

The council consulted on the application and over 500 representations were received, the majority of them objecting. Expert consultees included Kent County Council’s archaeology service, Historic England, English Heritage, and Historic Buildings and Places. Together they expressed concern that the application would harm the significance of the above heritage assets/designations, and their settings.

For example, Kent’s County Council’s heritage teams stated “We remain unconvinced that the building illustrated in the recently submitted photo visuals represents an appropriately high-quality “bespoke approach” that was advised was required at the pre-application stage. We also remains (sic) very concerned about the proximity of the proposed restaurant to the “tidy ruin” of St James’s Church… We remain very concerned about the location of the proposed building and its proximity to St James’s church which is a scheduled monument and listed building. We think this proximity will cause harm to the setting of the church. This harm relates not only to the visual impact of the new restaurant but from additional, noise, smells and potentially littering. In respect of noise, smells and potentially littering. In respect of noise, smells and littering we note the newly submitted visuals show outdoor dining/seating across the paved area between the restaurant building and the ruined church. We think the closeness of the fast-food restaurant, including outdoor seating and dining area could impact people’s quiet enjoyment of the “tidy ruin” and is at odds with the place’s role as a place of commemoration and as a monument to the wartime experience of the people of Dover.”

Against this criticism, the planning officer assigned to the application wrote a report for Dover’s planning committee. After a committee meeting, the council approved the application on 30 January 2025. Our client contended that the report was materially misleading because it had failed to record the extent of the professional consultees’ objections. Some had been omitted entirely while others had had their objection underplayed.

A pre-action letter on behalf of our client asserted that the issues with the report had materially misled the committee. Accordingly, the council had failed to have special regard to the desirability of preserving heritage assets, as it was required to do under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Similarly, the council had failed to pay special attention to the desirability of preserving or enhancing the character or appearance of the conservation area. We also argued that national policy on heritage assets had not been complied with.

In its pre-action response, the council agreed that it had made legal errors and agreed to the decision being quashed.

The consent was filed with the court on 13 March 2025 and the decision was quashed by consent. The Council re-determined the application and addressed their failure to have regard to the desirability of preserving heritage assets under the Planning (Listed Buildings and Conservation Areas) Act 1990. We made further objections to the application on the basis that the revised officer’s report still failed to adequately have regard to heritage issues, and that it was contrary to National Policy in relation to the provision of fast-food outlets in the vicinity of schools. Despite our objections, the Council granted planning permission following a Committee Meeting in June 2025.

We wrote pre-action correspondence to the Council inviting them to consent to quashing the decision on the following grounds:

1. The Council’s treatment of paragraph 97 NPPF was irrational and/or the Council failed to provide adequate reasons for is conclusions n paragraph 97 NPPF.
2. The Council misinterpreted Policy PM1 – which states that new development must “Demonstrate an understanding and awareness of the context of the area …, appreciate existing built form and respond positively to it” – and/or failure to have regard to a material consideration.
3. Failure to take into account relevant evidence as to traffic effects.

The Council refused to consent to judgment, and a further judicial review application was not pursued.

The case was transferred to us by the Environmental Law Foundation. Michael Feeney of Francis Taylor Building was counsel.