Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
THE HON. MRS JUSTICE PATTERSON DBE
Between:
THE QUEEN (on the application of SAVE BRITAIN’S HERITAGE) | Claimant |
- and - | |
LIVERPOOL CITY COUNCIL - and - REGENERATION LIVERPOOL AND NEPTUNE IN PARTNERSHIP | Defendant Interested Party |
Richard Harwood QC (instructed by Richard Buxton Environmental and Public Law) for the Claimant
Vincent Fraser QC (instructed by Liverpool City Council and Brabners LLP) for the Defendant and Interested Party
Hearing date: 18 December 2015
Judgment
Mrs Justice Patterson:
Introduction
This is an application for judicial review of a planning permission granted on 1 September 2015 by Liverpool City Council, the defendant, for a site described as 45 and 51 to 79 Lime Street and properties to rear in Bolton Street, Liverpool. The permission is in the following terms:
“To redevelop site following the refurbishment of 45 Lime Street and demolition of 51 to 77 Lime Street and partial demolition of 79 Lime Street to erect mixed-used development comprising ground floor commercial, retail and leisure uses (use classes A1 to A5) with hotel above and student accommodation with associated landscaping servicing and access.”
There is one ground of challenge, namely, that the defendant failed to notify the Department of Culture, Media and Sport (DCMS) and through them the World Heritage Committee of UNESCO in breach of the World Heritage Committee Operational Guidance and National Planning Guidance at paragraph 18A-036.
The claimant is a national campaign group formed in 1975 to campaign to save historic building. It submitted an objection to the proposal on 22 July 2015.
The defendant is the local planning authority and, as a result of acquisition of properties within the application site over some years, the owner of a significant part of the application site.
The interested party is a specialist regeneration developer established for more than 25 years and based in the city of Liverpool.
The application site represents the whole of a block of properties bounded by Lime Street/Skelhorne Street/Copperas Hill and Bolton Street with the exception of the Grade II listed Crown Hotel Public House on the corner of Skelhorne Street and Lime Street; 47 to 49 Lime Street; 79 Lime Street; the Grade II* listed The Vines Public House on the corner of Lime Street/Copperas Hill; and 9 to 11 Copperas Hill.
To the north of the application site lies the Grade II listed Lime Street Station and adjacent north-western halls and the Grade I listed St George’s Hall. The area around Lime Street Station, including some of the western end of Skelhorne Street has undergone significant public realm improvement works in the form of high quality repaving.
The site lies within the buffer zone of the Liverpool World Heritage Site (WHS) and is designated as a mixed-use area within the Unitary Development Plan. The boundary of the William Brown Street conservation area lies to the north of the site adjoining the public realm to the front of Lime Street Station.
The Facts
The planning application was submitted on 15 March 2015 by Regeneration Liverpool and Neptune in partnership. The documents which supported the application included a heritage assessment, planning statement and design and access statement. As originally submitted the scheme provided for a mixed-use development of commercial/student and hotel accommodation, including three buildings of between five and nine storeys. As part of the consultation process, while the principle of redeveloping the area was generally supported, concerns were raised by officers and other interested parties regarding the design of the development.
On 2 April 2015 Historic England responded in the following terms:
“The application is for demolition of 51-77 Lime Street, partial demolition of 79 Lime Street and refurbishment of 45 Lime Street. The proposal is also for redevelopment for mixed use including commercial, retail and leisure uses with hotel and student accommodation. Historic England’s remit is the impact on the setting of the Grade II* listed The Vines Public House only. The buildings proposed for demolition are not listed and not within a designated Conservation Area and therefore falls outside our remit of engagement.
The proposed scale, mass and height fronting Lime Street is of a similar footprint and height as the existing with a raise in height towards Bolton Street. We find this works well in the Lime Street area and the setting of the listed building. The principle of a contemporary architectural language is also accepted and we appreciate the effort to try to create a new and interesting addition to the area around Lime Street Station. However, we are not convinced of the grain and rhythm of the proposal, especially towards Lime Street where the impression is horizontal and monolithic.
We would recommend exploring ways of breaking the development up to respond better to its context and would be happy to discuss this further with the local authority and the applicant in order to find a solution.”
As a result, a revised scheme was submitted on 23 June 2015. That provided for mixed-use development including 3,022 square metres of commercial accommodation covering the full area of the ground floor. Above the commercial uses, facing Lime Street, there was proposed a further three storeys providing a 101 bedroom hotel with associated restaurant, bar and meeting rooms. Fronting Bolton Street there was proposed an eleven storey, 412 bedroom student residential block. In between the two blocks the design created a podium level spill out space for student residents and hotel/restaurant guests. Addenda to the previously submitted documents were included as part of the revised scheme.
A further full round of consultation was carried out by the defendant which began on 25 June 2015. To that the Victorian Society responded with an objection on the basis that the application would cause serious and unjustified harm to Liverpool’s unique historic environment. Having set out the importance of the buffer zone to the WHS the Society continued:
“The almost total clearance of the site and the loss of historic fabric it would entail would have a drastic and deleterious impact on Liverpool’s historic environment. It would result in the loss of buildings that are identified as significant positive components (and one that is locally listed). It would be detrimental to the character and appearance of the World Heritage Site Buffer Zone and have a direct and harmful impact on the Outstanding Universal Value of the World Heritage Site. It would harm the setting of the adjacent Conservation Area and would erode the setting of numerous listed buildings, most notably the Grade I-listed St George’s Hall, the Grade II*-listed Vines public house, the Grade II-listed Crown Hotel and the Grade II-listed Lime Street Station. For these reasons we object in principle to the demolition of much of the east side of Lime Street.”
The claimant objected, in a letter dated 22 July 2015, on two principal grounds – the harm caused to the heritage assets and the historic environment as a result of the demolition of existing buildings; and the harm caused to surrounding heritage assets and the wider historic environment of Liverpool as a result of the designs of the proposed new buildings. Within the letter of objection the claimant said:
“A further consideration must be Liverpool’s World Heritage Site (WHS), with the application site being located in the WHS buffer zone and within viewing distance of the William Brown Street WHS area which includes St George’s Hall and Lime Street Station.”
The claimant urged refusal of the application.
On 23 July 2015 Historic England responded by email to the revised consultation as follows:
“I have now considered the amendments to the previous scheme submitted in March this year. Historic England’s remit in this case is the setting of the Grade II* listed ‘The Vines’ adjacent to the site. The scheme is an improvement to the previous application in terms of both materiality and in respecting the rhythm and grain of this part of Lime Street and we do not consider the scheme as being harmful to the significance of the Grade II* listed building.”
An officer report was prepared and circulated together with an update of 10 August 2015.
The matter was considered by the committee on 11 August 2015. The members voted six in favour of a grant of planning permission, one against, and one abstention.
On 14 August 2015 the claimant wrote to the Secretary of State for Communities and Local Government (SSCLG) asking that he call in the planning application and that he issue a direction restricting Liverpool City Council from granting planning permission until he had considered the claimant’s request. The claimant’s letter referred to the impact running against WHS policy and placing Liverpool’s already officially “endangered” WHS at further risk. The WHS had been placed on the at risk register by UNESCO in 2012. Apart from the medieval remains in Kosovo, Liverpool’s WHS was the only other European site to be placed upon the at risk register.
The claimant’s letter continued with a section about the importance of the WHS and the conflict which it considered existed between the application proposals and the National Planning Policy Framework (NPPF). As a gateway to Liverpool as part of the WHS buffer zone it was essential that the scheme was fully scrutinised. The claimant considered there were overwhelming grounds to merit the SSCLG calling in the application for his own determination.
On 13 August 2015 Jerry Carpenter, a senior planning manager with DCLG, emailed the defendant saying that the SSCLG had recently received a number of requests to call in the planning application for his determination and sought the provision of relevant documents. Included in his request was one to see:
“A copy of any representations made to the authority in respect of the application. Would you also provide me with the name of the officer at Historic England, who dealt with the application so I can make contact to discuss the potential impact of the proposal on the setting of the World Heritage Site.”
On 19 August 2015 Mr Carpenter emailed again having had problems accessing the documents via the hyperlink provided. His email contained the following:
“We recently received a lengthy request to call in from SAVE which I have passed to Historic England, who will be providing me with comments about the potential impact on the WHS.”
On 25 August 2015 Rob Burns, the urban design and heritage manager, planning and building control with the defendant, emailed contacts at DCMS and Historic England with details of applications at Lime Street, Skelhorne Street and Wolstenholme Square. He provided hyperlinks to the documents in each of those applications and referred also to pre-application discussions that were ongoing on other sites.
The following day, 26 August 2015, Mr Carpenter emailed the defendant saying:
“The Secretary of State has considered the planning application for the redevelopment proposals at Lime Street, Liverpool, and has decided not to call it in for the reasons contained in the attached decision letter. The application has now been returned to Liverpool City Council for determination.”
The decision letter referred to made reference to the criteria used for calling in a planning application and stated that the policy made it clear that the power to call in a case will only be used very selectively. It continued that the policy gave examples of the type of issues which may lead the SSCLG to conclude that an application should be called in. He had decided, having regard to that policy, not to call in the application.
The material parts of the written ministerial statement on call in policy provide:
“The Secretary of State will, in general, only consider the use of his call in powers if planning issues of more than local importance are involved. Such cases may include, for example, those which in his opinion:
• …
• may have significant long term impact on economic growth and meeting housing needs across a wider area than a single local authority;
• could have significant effects beyond their immediate locality;
• …
• raise significant architectural and urban design issues…”
On 1 September 2015 planning permission was granted by the defendant for the proposed development.
Application to Cross-Examine
At the outset of the hearing the claimant made an application to cross-examine Mr Burns.
The basis for the application was that there was a dispute about the impact of the proposed development on the Outstanding Universal Value (OUV) which Mr Burns did not deal with in his witness statement. The issue was highly material because whether the development may have an effect on the OUV was the basis of the consultation requirement.
The claimant relied upon the recent case of Jedwell v Denbighshire County Council & Others [2015] EWCA Civ 1232 at [48] to [59]. In particular reliance was placed upon paragraphs 55 and 56. They read:
“55. Whether cross-examination is necessary will, of course, depend on what the issue is. At one end of the spectrum there may be a contested allegation that a decision was tainted by corruption. At the opposite end of the spectrum will be a case in which one of the functions of the decision maker was fact-finding. Both Mr Easton and Mr Hunter rightly stressed that whether to permit cross-examination was a discretionary decision for the judge which we should be very slow to overset. They also rightly cautioned against the possibility that cross-examination would become routine in judicial review cases. I have borne both those points in mind.
56. In our case the question of fact was whether Mrs Shaw’s evidence was an ex post facto justification of the decision to issue the negative screening opinion, or was an account of her actual reasoning process at the time. That was not an issue for the local planning authority to determine: it was a question for the court. The judge did not ask himself the critical question: what did justice require?”
The claimant submits that justice here requires the court to know whether Mr Burns’ assessment was an ex post facto justification of the decision.
The defendant objected to the application. Mr Burns was at court and willing to be cross-examined but there was no need for cross examination to take place. What was being raised was a new issue – whether the defendant had considered consulting DCMS. On 15 July 2015 Mr Burns had emailed the case officer with comments from Design and Heritage Conservation. They included the following:
“-- Due to its proximity to the World Heritage Site, it will also have an impact on its setting.
…
-- Whilst the Heritage Impact Assessment that accompanies the proposals describes the assets and their significance, the discussion of impacts is inadequate. However, my own analysis undertaken at pre-application stage, indicates that the scale of the proposals will not substantially impact on the World Heritage Site or the William Brown conservation area, and the setting of the two listed public houses whilst being affected, is already compromised by the large student blocks to the east. As such, I regard the proposals to be acceptable in terms of the impact on the setting of designated heritage assets.”
It was perfectly clear that the analysis carried out by Mr Burns was pre-application and that his conclusion was that the development would be of no impact on the designated asset or its setting. Mr Burns did not spell out the OUV but he had addressed it. In his witness statement Mr Burns did not deal with the situation in greater detail but no point was taken on it in the grounds of challenge.
The claimant maintained that this was not a new issue and referred to the statement of facts and grounds at paragraphs 32, 35 and 39. Mr Burns did not produce his email of 15 July 2015 until shortly before the court hearing.
Conclusions
I allowed Mr Burns to be cross-examined whilst reserving my judgment on whether his evidence would be admissible. If it was not, then I would exclude his evidence from my consideration.
I conclude that this is one of those rare cases where it is in the interests of justice to allow cross-examination of Mr Burns. I say that for the following reasons:
Mr Burns’ witness statement makes no reference to any assessment pre-application;
Development in a buffer zone to a WHS is capable of affecting the OUV;
It is important to know whether, if any assessment was done, when that was undertaken and what form it took;
Even though the email of 15 July 2015 does refer to a pre-application assessment there is nothing which indicates whether that was in writing or what form it took;
The email of 15 July 2015 was not disclosed until shortly before the hearing when the matter of potential impact on the OUV had been an issue from the start of the proceedings. Paragraph 39 of the statement of facts and grounds required the defendant to produce the contemporaneous document which concluded that there was no effect on the WHS, which addresses paragraph 18A-036 and all other contemporaneous documents relating to the effects of the application on the WHS.
It seemed to me that in those circumstances to allow Mr Burns to be cross examined was in the interests of justice, and, importantly, allowed justice to be seen to be done. I, therefore, granted the application to cross-examine Mr Burns and rule that his oral evidence is admissible.
Evidence of Mr Burns
Mr Burns confirmed the content of his witness statement and accepted that there was no reference to a pre-application assessment within it. He had referred to an assessment on the WHS but did not say when that had been carried out. He had done an assessment at the pre-application stage and on receipt of the application drawings. His email of 15 July 2015 was the only occasion in writing when he conveyed his views on the OUV but there had been other oral discussions in the office. He could not recall the precise date of the discussions but they confirmed the contents of his email. The scheme was such that it had been looked at more than once: it was the subject of ongoing discussion. He thought there had been several discussions; possibly three or four. He had a weekly get together with his superior to discuss ongoing applications and issues and it would have been discussed as part of those.
His email of 15 July 2015 concluded that the scale of the proposals would not substantially impact on the WHS and he regarded the proposals to be acceptable in terms of the impact on the setting of the designated heritage assets. An impact on the setting may be an impact on the OUV in general terms. He was responsible for urban design and in this case he concluded that the OUV was not affected. His email did not specifically refer to the OUV but identified setting. An impact on setting did not always equate to an impact on the OUV. He was clear that all heritage issues were taken into account.
Policy/Legal Framework
The defendant’s consultation requirements on a planning application were, at the relevant time, agreed to be set out in the Town and Country Planning (Development Management Procedure) (England) Order 2010 SI 2010 No 2184 (DMPO 2010). Before granting planning permission for development, which in its opinion, fell within a category set out in the table in schedule 5, a local authority is obliged to consult the authority or person mentioned in relation to that category, subject to certain exceptions which do not apply here.
There is no requirement under the DMPO 2010 to consult with any party on developments which could potentially impact upon a WHS.
Under the NPPF paragraph 132 provides that substantial harm to or loss of a designated heritage asset of the highest significance such as WHS should be wholly exceptional. Paragraph 137 provides that local planning authorities should look for opportunities for new development within WHS and within the setting of heritage assets to enhance or better reveal their significance. Proposals that preserve those elements of the setting that make a positive contribution to or better reveal the significance of the asset should be treated favourably. Paragraph 138 recognises that not all elements of a WHS will necessarily contribute to its significance.
The National Planning Practice Guidance (NPPG) at paragraph 026 reference ID: 18A-026 includes the following:
“The Outstanding Universal Value of a World Heritage Site, set out in a Statement of Outstanding Universal Value, indicates its importance as a heritage asset of the highest significance to be taken into account by:
• the relevant authorities in plan-making, determining planning and related consents …
• and by the Secretary of State in determining such cases on appeal or following call in.
Effective management of World Heritage Sites involves the identification and promotion of positive change that will conserve and enhance their Outstanding Universal Value, authenticity, integrity and with the modification or mitigation of changes which have a negative impact on those values.”
The NPPG at paragraph 036 reference 18A-036 deals with consultation. It reads:
“What consultation is required in relation to proposals that affect a World Heritage Site?
The World Heritage Committee Operational Guidelines ask governments to inform it at an early stage of proposals that may affect the Outstanding Universal Value of the Site and “before making any decisions that would be difficult to reverse, so that the Committee may assist in seeking appropriate solutions to ensure that the Outstanding Universal Value is fully preserved”. Therefore, it would be very helpful if planning authorities could consult Historic England (for cultural Sites) or Natural England (for natural Sites) and Department for Culture, Media and Sport (DCMS) at an early stage and preferably pre-application.
Planning authorities are required to consult the Secretary of State for Communities and Local Government before approving any planning application to which Historic England maintains an objection and which would have an adverse impact on the Outstanding Universal Value, integrity, authenticity and significance of a World Heritage Site or its setting, including any buffer zone or its equivalent. The Secretary of State then has the discretion as to whether to call-in the application for his/her own determination.”
The operational guidelines for the implementation of the World Heritage Convention deal with the process of monitoring the state of conservation of World Heritage properties as follows:
“Definition of Reactive Monitoring
169. Reactive Monitoring is the reporting by the Secretariat, other sectors of UNESCO and the Advisory Bodies to the Committee on the state of conservation of specific World Heritage properties that are under threat. To this end, the States Parties shall submit specific reports and impact studies each time exceptional circumstances occur or work is undertaken which may have an impact on the Outstanding Universal Value of the property or its state of conservation. Reactive Monitoring is also foreseen in reference to properties inscribed, or to be inscribed, on the List of World Heritage in Danger as set out in paragraphs 177-191. Reactive Monitoring is also foreseen in the procedures for the eventual deletion of properties from the World Heritage List as set out in paragraphs 192-198.
These reports shall be submitted to the World Heritage Committee through the Secretariat, using the standard format in Annex 13, in English or French:
a) by 1 December of the year preceding the examination of the property by the Committee, for the properties inscribed on the World Heritage List,
b) by 1 February of the year of examination of the property by the Committee, for the properties inscribed on the List of World Heritage in Danger, and for specific case of utmost urgency.
Objective of Reactive Monitoring
170. When adopting the process of Reactive Monitoring, the Committee was particularly concerned that all possible measures should be taken to prevent the deletion of any property from the List and was ready to offer technical co-operation as far as possible to States Parties in this connection.
171. The Committee recommends that States Parties co-operate with the Advisory Bodies which have been asked by the Committee to carry out monitoring and reporting on its behalf on the progress of work undertaken for the preservation of properties inscribed on the World Heritage List.
Information received from States Parties and/or other sources
172. The World Heritage Committee invites the States Parties to the Convention to inform the Committee, through the Secretariat, of their intention to undertake or to authorize in an area protected under the Convention major restorations or new constructions which may affect the Outstanding Universal Value of the property. Notice should be given as soon as possible (for instance, before drafting basic documents for specific projects) and before making any decisions that would be difficult to reverse, so that the Committee may assist in seeking appropriate solutions to ensure that the Outstanding Universal Value of the property is fully preserved.”
Submissions
The Claimant
The claimant submits that there is a planning policy expectation of consultation on the basis of paragraph 18A-036 of the NPPG. It accepts that the operational guidance of the World Heritage Convention operates at an international level. It is the NPPG which is most relevant here.
The consultation which occurred on the application, both as originally submitted, and as revised, did not include DCMS.
The starting position is that the defendant did not address its mind to consulting with DCMS either as general practice or by reference to the NPPG. The defendant did not ask itself the right question on consultation.
On 25 August Mr Burns emailed DCMS but that was no attempt to consult under the paragraph of the NPPG. Mr Burns understood that the Lime Street site had been given planning permission and the email was for information only.
There is no documentation prior to the decision to grant planning permission which refers to the effects on the OUV. What is talked about is the impact of the proposed development on the setting of the WHS. The view that there was no substantial impact on that finds its way into the officer report. The impact on the setting was a separate question as to whether there was an effect on the OUV. The defendant did not reach a conclusion on that.
Whilst Mr Burns was concerned with the adverse effect and that was relevant to the planning merits it was not the right question in considering whether to consult with DCMS.
Mr Burns’ evidence was no basis for saying that what he discussed in the course of his meetings with the planning officers went beyond his analysis of the email dated 15 July 2015.
Historic England in their consultation response of 2 April 2015 made no mention of the WHS. They did not seem to recognise that WHS was within their remit.
The process of consultation under the NPPG was to give the World Heritage Commission (WHC) an opportunity to consult. The claimant accepts that the expectation arises only from guidance and it is not supported by any statutory provision or direction. The significance here is that the proposed development might have had an effect on the WHS.
There had been a range of views on the planning application. That was important because if WHC had known about the scheme and that it might have had an impact it may have responded and the decision maker would have been able to take into account its informed view.
On the wording of the NPPG the claimant submits that there is no practical difference between the two paragraphs of 18A-036. The first paragraph is setting out a series of circumstances as indicative of when the WHC wants to be told about a development. The claimant accepts that DCMS is a gate keeper prior to referral to the WHC.
The evidence of Mr Burns does not suggest that the issue of whether the OUV was affected was being addressed. The claimant relies upon the case of R (Friends of Hethel Limited) v South Norfolk District Council [2010] EWCA Civ 894 and in particular paragraphs 36, 46 and 47. Sullivan LJ said at the relevant part of [36]:
“The question for the purposes of Circular 01/01 and the 1990 Regulations is whether the development would affect the setting of the listed building, not whether it would affect it so seriously as to justify a refusal of planning permission. The extent of the effect, and its significance in terms of the setting of the particular listed building, are precisely the matters on which English Heritage's expert views should be sought.”
At [46] and [47] Sedley LJ said:
“46. On the second of the two grounds addressed in the judgment of Lord Justice Sullivan, I have no difficulty in accepting that the district council's failure to notify English Heritage of the application vitiated the subsequent grant of planning permission.
47. As to para. 41 of the leading judgment, while I agree with the proposed outcome, it should not be thought that it is only in relation to such finely-balanced decisions as we have here that a quashing order will go. There may be other reasons of practice or principle for taking a similar course in other cases.”
As a result of its inaction the claimant submits that the defendant acted unlawfully.
I deal with further submissions on remedy and discretion at the end of this judgment.
The Defendant
There is no requirement to consult under the statutory provisions. That applies equally to DCMS and WHC. There were no directions not to determine the application in the absence of that consultation.
Although now cancelled Circular 07/2009 is helpful in interpreting the disputed paragraph in the NPPG. That reads:
“19. The White Paper introduced a new proposal to increase the protection of World Heritage Sites and ensure that the outstanding universal value for which the Site is inscribed is properly reflected in development proposals. Under the terms of the Town and Country Planning (Consultation) (England) Direction 2009, planning authorities are required to consult the Secretary of State for Communities and Local Government before approving any planning application made on or after 20 April 2009 to which English Heritage maintains an objection and which would have an adverse impact on the outstanding universal value, integrity, authenticity and significance of a World Heritage Site or its setting, including any buffer zone. The Secretary of State then has the discretion to call-in the application for his own determination if he considers it appropriate to do so.”
There is no entry on the proforma consultation sheets which indicates that DCMS or WHC are to be consulted. That is not surprising as there is no statutory requirement to do so.
‘The Protection and Management of World Heritage Sites in England’ which is a Historic England document with no formal status in the planning process is of some use. As its front page says:
“As it still contains some information about World Heritage that remains relevant and useful, we have left it on our website for reference purposes.”
Within the section on handling development proposals within WHS the advice is that planning authorities should carefully consider the impact on the OUV, the authenticity and integrity of the WHS. In 7.11 the document continues:
“In all cases likely to have a significant impact on Outstanding Universal Value, authenticity and integrity of the World Heritage Site pre-application consultation and discussion should be carried out with the planning authority and regional English Heritage staff to ensure that all implications are fully understood and explicitly portrayed in supporting illustrative materials.”
Paragraphs 7.12 and 7.13 read:
“7.12. The UNESCO World Heritage Committee has asked to be informed by national governments of proposals for major restorations or interventions which may affect the Outstanding Universal Value of a World Heritage Site. They ask for notice to be given as soon as possible so that the Committee may assist in seeking appropriate solutions to ensure that the Outstanding Universal Value of the property is fully preserved. This process raises considerable problems in terms of defining whether developments will have an adverse impact on Outstanding Universal Value and of timing since the World Heritage Committee meets only once a year while in the UK planning decisions are normally taken more rapidly. In some cases, it may be appropriate to refer cases before submission of an actual planning application.
7.13. The decision on whether or not to refer cases to UNESCO is taken by DCMS. They will first seek the advice of English Heritage and it is helpful for English Heritage staff in the relevant regional office to be consulted at an early stage by planning authorities on all cases with significant potential impact on Outstanding Universal Value. All cases for which English Heritage requests call-in because of impact on Outstanding Universal Value will be considered for potential referral to the UNESCO World Heritage Committee. English Heritage will also advise DCMS on whether cases should be referred at an earlier stage of their development (see Section 10 also).”
The guidance makes it clear that because the WHC meets once a year, if the interpretation was to refer through DCMS all applications that may have an impact on the setting of a WHS the English planning system would come to a halt. Within Liverpool City Centre there are on average 600 planning applications a year. Further, the guidance shows that DCMS relies on the advice of Historic England. Only in cases in which Historic England request a call-in because of impact on OUV will there be consideration for potential referral to the WHC.
The operational guidance on monitoring the state of conservation of World Heritage properties makes it clear that there is no obligation to refer. What there is is an invitation to inform the committee about major restorations or new constructions which may affect the OUV of the property.
The wording of the NPPG at paragraph 18a-036 itself is significant. The only natural reading is that there is no requirement to refer all applications to DCMS. The first paragraph is expressed in terms of being helpful.
The second paragraph does not apply as Historic England has never objected to the application.
Further, given the infrequency of meetings of the WHC it is impractical to await advice from them in any event.
It is clear that, after the claimant requested the application be called-in, their application was passed to Historic England which was then fully aware of all parts of the representations made by the claimant and before the planning permission was issued.
After the annual WHC meeting in Bonn in the summer of 2015 correspondence was entered into by the defendant with DCMS in relation to planning applications in respect of which the WHC would or may have had an interest. Within that correspondence, in a letter dated 4 December 2015, there was reference to the Lime Street application. The relevant part of that letter reads:
“The Lime Street Gateway proposals in the buffer zone of the property, which were approved by Liverpool City Council, were adjudged by Liverpool City Council not to have a harmful impact on the OUV of the property, a position with which Historic England agreed. It should, however, be noted that the decision has been subject of a legal challenge by Save Britain’s Heritage and this will be heard in December 2015.”
From that letter it can be inferred that Historic England did not consider that the proposed development had any harmful impact on the OUV. It demonstrates that sending the application off to DCMS would have made no difference to the outcome. Mr Burns explained that there were two types of planning application that were referred to DCMS. First, those under paragraph 172 and second, those which were examples of development that was proceeding. The Lime Street scheme was included as an example within the latter.
The wording of the first paragraph within NPPG 18A-036 is deliberate because of the practical problems that would ensue if all such applications were referred to DCMS. The department would be swamped. Even if the proper interpretation requires an exercise of judgment the evidence is that Mr Burns had given thought to the impact on the OUV and concluded that there was none.
Even if the defendant was wrong, if there was no requirement to consult, there cannot be a requirement to consider whether to do so. The evidence given by Mr Burns is clear. What the claimant has done is to conflate the impact on the setting of the WHS with impact upon the OUV. There is no indication as to why the latter arises.
Discussion and Conclusions
The statement of Liverpool’s World Heritage Sites’ Outstanding Universal Value is attached to this judgment as Appendix A. That emphasises the historic importance and significance of the City and Port of Liverpool as examples of maritime culture in the 18th, 19th and 20th centuries. That is a document prepared by the WHC as part of the inscription of the WHS.
In 2012 the WHC placed Liverpool Maritime Mercantile City on the list of WHS in danger because of the potential threat of the proposed development of Liverpool Waters on the OUV of the property. Liverpool Waters is a large scale development encompassing the waterfront of the city. In 2015 the decision was made to retain Liverpool WHS on the danger list because of the concern on the part of WHC about the urban density and height of the proposed development for the Liverpool Waters project.
The position of Liverpool on the list of WHS in danger is part of the context of dealing with the instant application.
It is accepted by the claimant that there is no statutory requirement to consult with DCMS so that the department can consider whether to onward refer the application to the WHC.
Rather, the claimant puts its case on the basis of the first paragraph of 18a-036 of the NPPG. That is set out in full above. In my judgment, the paragraph is requesting governments to inform the WHC of proposals that may affect the OUV of a listed site before making any decisions that it would be difficult to reverse. To enable a government to take that action it is said to be “very helpful if planning authorities could consult Historic England (for cultural sites) … and DCMS at an early stage.” That advice is unsupported by any statutory framework and is policy guidance.
There is a clear distinction between its wording and that of the second paragraph which requires consultation with DCLG where Historic England maintain an objection on the basis of development having an adverse impact on the OUV, integrity, authenticity and significance of a WHS or its setting including any buffer zone or its equivalent. That situation does not apply here. Historic England were consulted on the application and at no time did it object.
The claimant submits that, for whatever reason, Historic England failed to recognise its duty and consider the WHS. There is no evidence in support of that submission. But, even if that were correct whilst the application was being considered for reporting to Committee, when Historic England were informed in August 2015 about the claimant’s representations that the planning application should be called-in because of, amongst other things, its effect on the OUV Historic England can have been in no doubt of concerns being expressed by those opposing the planning application. Although no documentation has been provided from Historic England after the call-in application was referred to them, in my judgment, a clear inference can be drawn that they either had no concerns or were insufficiently concerned about the application so as to advise the DCLG to call it in.
It has to be recalled that, in exercising his call-in powers the SSCLG would be mindful of his own policy in the written ministerial statement which includes within its call in criteria development with effects beyond its immediate locality and which raises significant architectural and urban design issues. The SSCLG must have directed his mind to those issues in deciding that he would not call-in the application.
It is common ground that the application submitted had the potential to have an impact upon the setting of the WHS within the buffer zone. However, that is not to be equated here with having an effect on the OUV and the various criteria that are used for the inscription of the site.
Mr Burns’ evidence was clear. He presented as an impressive and thoughtful witness. He said that he had thought about impact on the OUV and concluded that there was none. He had done his own assessment which was referred to in the email of 15 July 2015. Whilst it is right that there is no express reference to OUV on the face of that email his oral evidence was clear; he had considered it. There is no requirement for there to be an audit trail of each internal discussion between officers on a pending planning application and of each decision which is made in the context of an ongoing planning application. To impose such a requirement upon officers of a busy local authority would be both extremely onerous and, in my judgment, completely impractical.
Nothing can be drawn from the consultation sheets used by the defendant which do not include DCMS and WHC. That is because those sheets are acting as an aide memoir as to who has to be consulted under the National Statutory Framework. The claimant does not argue that there is a requirement to consult in those circumstances.
That overall interpretation of the requirements of the guidance is consistent with the document entitled “The Protection and Management of World Heritage Sites in England” paragraph 7.13 and the operational guidelines for the implementation of the World Heritage Convention. Both illustrate the importance of cooperation between the member states and the Commission but there is no compulsion to liaise and/or notify. In fact, in the circumstances here, even if there had been a requirement to refer the application to DCMS, given the stance of Historic England on the call-in application, and, in the absence of any other material consideration, there is no evidence to support a submission that DCMS would have onward referred the application in any event.
An additional factor is, as the defendant points out, the regular but infrequent meetings on the part of the WHC. If all applications that could have an effect upon the OUV were to be referred to the WHC that would pose considerable problems for the WHC system. There has to be an intervening exercise of judgment on the part of the State, in this case DCMS, after receiving advice from Historic England as to whether it is appropriate to refer the application at all.
It follows that I do not accept that the defendant failed to ask itself the right question. The evidence of Mr Burns made it quite clear that the defendant did.
The claimant submits that the purpose of the consultation is to enable the decision maker to take into account the informed views of the WHC where there is a range of views on a planning application, it is important that the view of the WHC is known and their advice is clearly capable of affecting the ultimate decision. In this case the defendant was aware of the range of views on the planning application from the claimant and Victorian Society on the one side to the applicant on the other. The defendant had an informed and expert view from its own design manager and had the views of Historic England. There is nothing to indicate that the decision making process was flawed as a result of the defendant taking all of the views before it into account in reaching its decision.
I reject the submission that there is no practical difference between the two paragraphs in the NPPG. The plain and ordinary wording of them makes it clear that the language used has been deliberately chosen to cover different circumstances. The first paragraph is advisory only whereas the second sets out a clear requirement.
The case of Hethel is of no great assistance as that concerned a decision where there was a clear consultation requirement (see [31]) and the decision of the committee was finely balanced. Neither of those circumstances apply here.
Remedy
Strictly this does not arise as the claim fails. For the sake of completeness however I do consider, shortly, whether, if I were wrong on the above, a failure to consult with DCMS would have materially affected the outcome. Such a failure is not fatal where it is clear the outcome would be the same: see Walton v Scottish Ministers [2012] UKSC 44.
Further, the defendant asked that I consider section 31(3)(c) of the Senior Courts Act 1981 which requires the court to consider whether the outcome for the claimant would have been substantially different if the conduct complained of had not occurred.
Although there is a difference between the two tests, in my judgment, the outcome would have been the same whichever is used. The absence of any statutory requirement to consult means that the defendant discharged all that was required of it under statutory guidance. Equally there was no further requirement to consult based upon policy guidance. Further, the stance of Historic England, both in the initial consultation phase and post-resolution phase when they were further consulted by DCLG about calling-in the application, means that there is no basis for concluding that referral to DCMS would have materially affected the outcome of the case.
Of the two other cases referred to by the claimant that of R (Holder) v Gedling Borough Council [2014] EWCA Civ 599 concerns a case where the Court of Appeal concluded that it was not possible to conclude that there would have been no real possibility of a different outcome or that the decision would have been the same. There, the decision maker was dealing with inappropriate development in the green belt which required the establishment of very special circumstances. It was for the planning committee rather than the court to assess whether there were very special circumstances in a case in which the answer was not self-evident. That is very different from the situation in the instant case.
The other case referred to was R (Loader) v Rother District Council [2015] EWHC 1877 which involved breach of a statutory requirement to notify English Heritage. There had been detailed consideration of all matters by the committee in determining the planning application. I decided that, in those particular circumstances, it was appropriate to exercise my discretion not to quash. That decision is under appeal. In any event the factual situation is very different to that which is applicable here where there is no statutory requirement to consult.
Conclusion
In all the circumstances I would have granted permission to bring the claim for judicial review but dismiss the substantive application for reasons which are set out above.
I invite the parties to agree a final Order and costs.
APPENDIX A
WORLD HERITAGE SITE – OUV
Brief synthesis
Located at the tidal mouth of the river Mersey where it meets the Irish Sea, the maritime mercantile City of Liverpool played an important role in the growth of the British Empire. It became the major port for the mass movement of people, including slaves and emigrants from northern Europe to America. Liverpool was a pioneer in the development of modern dock technology, transport systems and port management, and building construction.
Six areas in the historic centre and docklands of Liverpool bear witness to the development of one of the world’s major trading centres in the 18th, 19th and early 20th centuries. A series of significant commercial, civic and public buildings lie within these areas, including the Pier Head, with its three principal waterfront buildings – the Royal Liver Building, the Cunard Building, and Port of Liverpool Building; the Dock area with its warehouses, dock walls, remnant canal system, docks and other facilities related to port activities; the mercantile area, with its shipping offices, produce exchanges, marine insurance offices, banks, inland warehouses and merchants houses, together with the William Brown Street Cultural Quarter, including St George’s Plateau, with its monumental cultural and civic buildings.
Liverpool – Maritime Mercantile City reflects the role of Liverpool as the supreme example of a commercial port at the time of Britain’s greatest global influence. Liverpool grew into a major commercial port in the 18th century, when it was also crucial for the organisation of the trans-Atlantic slave trade. In the 19th century, Liverpool became a world mercantile centre for general cargo and mass European emigration to the New World. It had major significance on world trade as one of the principal ports of the British Commonwealth. Its innovative techniques and types of dock, dock facilities and warehouse construction had worldwide influence. Liverpool was instrumental in the development of industrial canals in the British Isles in the 18th century, and of railway transport in the 19th century. All through this period, and particularly in the 19th and 20th centuries, Liverpool gave attention to the quality and innovation of its architecture and cultural activities. To this stand as testimony its outstanding public buildings, such as St George’s Hall, and its museums. Even in the 20th century, Liverpool has made a lasting contribution, remembered in the success of The Beatles, who were strongly influenced by Liverpool’s role as an international port city, which exposed them to seafarers, culture and music from around the world, especially America.
Criterion (ii): Liverpool was a major centre generating innovative technologies and methods in dock construction and port management in the 18th, 19th and early 20th centuries. It thus contributed to the building up of the international mercantile systems throughout the British Commonwealth.
Criterion (iii): The city and the port of Liverpool are an exceptional testimony to the development of maritime mercantile culture in the 18th, 19th and early 20th centuries, contributing to the building up of the British Empire. It was a centre for the slave trade, until its abolition in 1807, and for emigration from northern Europe to America.
Criterion (iv): Liverpool is an outstanding example of a world mercantile port city, which represents the early development of global trading and cultural connections throughout the British Empire.
Integrity
The key areas that demonstrate Outstanding Universal Value in terms of innovative technologies and dock construction from the 18th to the early 20th century and the quality and innovation of its architecture and cultural activities and contained within the boundaries of the six areas forming the property. The major structures and buildings within these areas are generally intact although some such as Stanley Dock and associated warehouses require conservation and maintenance. The historic evolution of the Liverpool street pattern is still readable representing the different periods, with some alteration following the destruction of World War II.
There has been some re-development on sites previously redeveloped in the mid-late 20th century or damaged during World War II, for example at Mann Island and Chavasse Park, north and east of Canning Dock. All archaeology on these development sites was fully evaluated and recorded; archaeological remains were retained in situ where possible, and some significant features interpreted in the public domain. A new visitor centre has been opened at the north east corner of Old Dock, which has been conserved and exposed after being buried for almost 200 years. The production and adoption of design guidance minimizes the risks in and around the WH property that future development might adversely affect architectural quality and sense of place, or reduce the integrity of the docks.
Authenticity
Within the property, the major dock structures, and commercial and cultural buildings still testify to the Outstanding Universal Value in terms of form and design, materials, and to some extent, use and function. Warehouses at Albert Dock have been skilfully adapted to new uses. Some new development has been undertaken since inscription and has contributed to the city’s coherence by reversing earlier fragmentation. No significant loss of historical authenticity has occurred, as the physical evidence of the City and its great past remain prominent and visible, and in some cases has been enhanced. The main docks survive as water-filled basins within the property and in the buffer zone. The impact on the setting of the property of further new development on obsolete dockland is a fundamental consideration. It is essential that future development within the World Heritage Property and its setting, including the buffer zone, should respect and transmit its Outstanding Universal Value.
Protection and management requirements
The property is within the boundary of Liverpool City Council and is protected through the planning system and the designation of over 380 buildings. The six sections of the property are protected as Conservation Areas under the provisions of the Planning (Listed Buildings and Conservation Areas) Act 1990.
The properties within the boundary are in mixed ownership and several institutions have management responsibilities relating to them. The property is subject to different plans and policies, including the Liverpool Unitary Development Plan (2002) and the Strategic Regeneration Framework (July 2001). There are several detailed master plans for specified areas, and conservation plans for the individual buildings. A Townscape Heritage Initiative for Buildings at Risk in the World Heritage site and its buffer zone is successfully encouraging and assisting the restoration of buildings within designated areas of the property. A full Management Plan has been prepared for the property. Its implementation is overseen by the Liverpool World Heritage Site Steering Group, which includes most public bodies involved in the property.
At the time of inscription, the World Heritage Committee requested that the height of any new construction in the property should not exceed that of structures in the immediate surroundings; the character of any new construction should respect the qualities of the historic area, and new construction at the Pier Head should not dominate, but complement the historic Pier Head buildings. There is a need for conservation and development to be based on an analysis of townscape characteristics and to be constrained by clear regulations establishing prescribed heights of buildings.
A Supplementary Planning Document for Development and Conservation in and around the World Heritage site addresses the management issues raised by the World Heritage Committee in 2007 and 2008 and was formally adopted by the Liverpool City Council in October 2009.