AC-2024-LON-002558 - [2025] EWHC 2278 (Admin)

Although the subject matter differs, the underlying basis of the arguments in Grounds 3 and 4 are substantially similar. In each case the complaint is that the Officer failed to have regard to a protective designation when deciding whether to grant prior approval or not. I have therefore considered the two grounds together.

I begin by reflecting on the relevance of the guidance in Annex E to PPG7, to which Mr Beglan referred me. As I have summarised above, this offers guidance to local planning authorities on how to approach the consideration of prior approval applications which may have an impact upon (per paragraph E16) “sites of recognised nature conservation value” (in this case Bayford Wood, a designated ancient woodland, to which Ground 3 relates) and (per paragraph E22) “listed buildings and their settings” (in this case The Gage, to which Ground 4 relates).

It is correct to observe that the entirety of PPG7, including Annex E, has been withdrawn and superseded by the consolidated NPPF and the PPG. Those documents go into much less detail about how to approach applications of this nature, but nothing that they say is inconsistent with the guidance formerly found in Annex E.

For example, passages in the NPPF provide as follows:

“186.

When determining planning applications, local planning authorities should apply the following principles:

…

(c)

development resulting in the loss or deterioration of irreplaceable habitats (such as ancient woodland and veteran trees) should be refused unless there are wholly exceptional reasons and a suitable compensation strategy exists

…

205.

When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation …”

Also, the PPG includes the following:

“How can local planning authorities assess the potential impact of development proposals on ancient woodland and ancient or veteran trees?

Local planning authorities need to consider both the direct and indirect impacts on ancient woodland and ancient or veteran trees when assessing development proposals and the scope for avoiding or mitigating adverse impacts” (Paragraph 033 Reference ID 8-033-20190721)

In my judgement the withdrawal of Annex E does not affect materially the assistance it provides to this case. Good practice guidance does not cease to be that just because the policy document in which it is found is later withdrawn. PPG7 was withdrawn not because it was considered to be no longer applicable but because in 2012 the Government had concluded that the lexicon of planning policy should be consolidated, and reduced in size dramatically, by replacing it with the NPPF. The prior approval procedure which it was advising upon is substantially unchanged. The guidance continues to serve as a useful reminder to local planning authorities of how to administer the same sort of application when judged against the same sort of criteria.

Ms Nevin’s primary case for the Council was that the Officer accepted the existence of the listed building and the ancient woodland to be material considerations in the prior approval decision, and then to explore how the Officer dealt with them in the Report.

At one point in oral argument Ms Nevin offered an alternative submission, namely that the impact on these designations were not considerations so obviously material that regard should be had to them directly (reflecting the judgment of Cooke J in the New Zealand case of CREEDNZ Inc v Governor General [1981] NZLR 172, cited with approval by the Supreme Court in R (Friends of the Earth) v Heathrow Airport [2021] PTSR 190). I reject that submission. Policy and legislation is drafted to emphasise the importance of assessing impacts on these types of designations. The extracts I have given above from the NPPF and the PPG are merely examples of this. The designations are clearly material considerations to which regard must be had. Whilst the range of outcomes on a prior approval application differs from the range of outcomes with a planning application, because in the former case the principle of development is already guaranteed, nevertheless in the latter case an assessment of impacts is still necessary to inform the appropriate impact mitigation strategy that should be employed.

I turn therefore to consider Ms Nevin’s primary submission, that the impacts of the development on the listed building and the ancient woodland were material considerations but that they were considered adequately by the Officer. She emphasised – per Underhill LJ in Balajigari – that the nature and extent of the enquiry conducted into this question was a matter for the Officer’s discretion. She highlighted the passage from the Conclusion of the Report, which states that “The siting, design and external appearance of the development is acceptable, with the character and appearance of the site and the surrounding area not unduly harmed”, leading to a recommendation that prior approval be granted.

I must say the submission that the Officer did have regard to the impact of the development on the listed building and the ancient woodland is an ambitious one.

Without the benefit of seeing the pleadings I would have had no clue at all that there is a listed building and an ancient woodland in the environs of the Works. There is no mention of either designation in the Report. There is no mention of either designation in any of the application material. There is also no assertion in the witness evidence in these proceedings indicating the Officer was aware that The Gage was a listed building or that Bayford Wood was an ancient woodland, despite (as Mr Beglan noted) the fact that the Council’s evidence was compiled after the Statement of Facts and Grounds had been seen and the complaints of the Claimant fully particularised.

Ms Nevin urged the court to accept that references in the Report to an assessment of impacts “on the character and appearance of the site and the surrounding area” must be taken to include impacts on the listed building and the ancient woodland. I cannot accept that submission. For this to be the case there would have to be some clues that the Officer was even aware of these designations. There are none. This should be contrasted with comments (admittedly limited, but still present) specifically regarding the green belt status of the area including the Property and of the impact of the Works upon it.

The conclusion that I am forced to draw on the evidence is that the Officer was simply unaware that there was a listed building and an ancient woodland to be considered here. That being so, self-evidently it is impossible to infer that she had proper regard to them in reaching the decision to grant prior approval.

In reaching this conclusion I am very mindful of the commonly-repeated judicial warning not to apply too stringent a standard to reading officers’ reports. They “are not to be read with undue rigour, but with reasonable benevolence” (per Lindblom LJ in R (Mansell) v Tonbridge BC [2019] PTSR 1452). That approach applies to officers’ delegated reports in the same way that it does to reports written for a decision by members of a Planning Committee (R (Bates) v Maldon District Council [2019] EWCA Civ 1272). I consider that my approach nevertheless heeds this warning. There is a world of difference between a benign reading of what the Report means and a creative re-imagining of what it says. The approach urged by the Council requires the latter.

To conclude, in my judgement the impact of the Works on both the listed building and the ancient woodland were material considerations needing to be addressed as part of the prior approval decision. The evidence strongly suggests that this was not done. I am left in doubt from the evidence whether the Officer was even aware that these protective designations were in existence. That is a failing of the Council. Although the applicant did not highlight the existence of these designations either, a local planning authority can be taken to know about those which apply in its local area. For these reasons the prior approval cannot be allowed to stand.

Grounds 3 and 4 both succeed.