Out-Law News | 17 Jun 2014 | 4:31 pm | 2 min. read
The Council twice granted planning permission to the West Kent Housing Association for the construction of six two-bedroom affordable dwellings on grassland in the village of Penshurst, within the Penshurst Conservation Area and the High Weald Area of Outstanding Beauty. The first permission was granted in October 2012 and the second, for the same proposal with an altered design and access statement, was granted in October 2013.
Campaign group the Forge Field Society was granted permission to apply for judicial review of both decisions. The claims were heard by Mr Justice Lindblom on 12 June.
The Council did not contest the claim against its October 2012 decision, admitting that it had failed in its statutory duties regarding the impact of the proposals on the Penshurst Conservation Area and the settings of listed buildings in the village when coming to its decision on the first planning permission.
In his consideration of the claim against the Council's October 2013 decision, Mr Justice Lindblom found that the chief planning officer had again failed to consider whether the benefit of the proposals in providing affordable housing outweighed the strong presumption against granting planning permission where the setting of a listed building or a conservation area will be affected.
The judge said that "having 'special regard' to the desirability of preserving the setting of a listed building ... and paying 'special attention' to the desirability of preserving or enhancing the character and appearance of a conservation area ... involves more than merely giving weight to those matters in the planning balance. 'Preserving' in both contexts means doing no harm."
"Once he had found that there would be some harm to the setting of the listed building and some harm to the conservation area, the officer was obliged to give that harm considerable importance and weight in the planning balance", said Mr Justice Lindblom. "On a fair and not unduly severe reading of the report as a whole, I do not believe that he did that."
The judge also found that "the Council's assessment of alternative sites in October 2013 was deficient". He said that, although "a large number of possible alternative sites had been considered", the Council had failed to give proper consideration to proposals for one alternative site that had been refused permission previously but had since been amended to address the Council's earlier objections.
The judge did not agree with the claimants that the Council's decision to award the second planning permission was necessarily biased by the fact that it was fighting the first judicial review, that the decision was irrational, or that insufficient consideration was given to conserving the surrounding Area of Outstanding National Beauty.
Judging both decisions unlawful, Mr Justice Lindblom ruled that the Council must consider the plans for a third time in order to provide a lawful decision. However, he warned the claimants that "whether this success will lead to a different decision on the planning merits is in my view doubtful, to say the least."