Last week, my colleague Gary Soloman and I recorded a webinar on garden cities, regeneration and compulsory purchase. We focused on some of the constraints which can hinder housing developments including the impact they have on nearby heritage assets.

I mentioned the July 2019 case of Pagham Parish Council v Arun DC [2019] EWHC 1721 which concerned the judicial review of grant of permission by Arun District Council for a development of 400 dwellings on a site close to number of Grade I listed buildings on an allocated site. The basis of the challenge was that the planning committee had failed to have regard to s.66 of the Planning (Listed Buildings and Conservation Areas) Act 1990  which requires the decision maker to have special regard to the desirability of preserving the building or its setting or any features of special architectural or historical interest which it possesses. The High Court considered that the question was whether the substance of the officer’s report had sufficiently drawn the committee's attention to the proper approach required by the law, and material considerations, and held that it had.

Yesterday, the High Court handed down a further judgment on this topic in R (Advearse) v. Dorset Council [2020] EWHC 807 (Admin), and dismissed a judicial review claim against the grant of an outline consent for 760 homes, a 60 unit care home and associated uses on an allocated site in the West Dorset, Weymouth & Portland Local Plan 2015. The claim was brought on three grounds and of interest is the first ground which alleged that the officer’s report to the planning committee was misleading in relation to the impact of the scheme on a nearby conservation area and designated heritage assets. The parties agreed that the s.66 duty would be discharged if the decision was taken consistently with the requirements of the NPPF. The Judge found that the authority had failed to address the statutory duty in respect of the grade II listed property outside the development site boundary and similarly had failed to have regard to the national policy protecting conservation areas. However, the Judge refused to quash the consent on the basis that it was highly likely that it would have been granted if the correct process had been undertaken, under the Senior Courts Act 1981.

This case emphasises how important the s.66 duty is when considering the legality of decisions to grant consent for major housing and mixed use sites, for both local authorities and developers, as well as serving as a useful reminder that judicial review cases will only be successful if it can be demonstrated that a different decision would be reached if taken lawfully.