High Court quashes planning permission for unlawful consideration of a “fall back” and heritage matters

Royal Court of Justice

Today, 7 July 2023, the High Court issued its judgment in R (Widdington Parish Council) v Uttlesford DC [2023] EWHC 1709 (Admin).  Part of the claim related to the Defendant's (D) treatment of a “fall-back” asserted by the Interested Party developer (IP).  The IP alleged that it could create an access to its site from a protected lane and non-designated heritage asset pursuant to Part 2, Class B of Schedule 2 of the GPDO for the purposes of holding a market.  The IP obtained an LDC to this effect.  However, the Claimant (C) and others obtained evidence to suggest that the market could not and would not be held on the site.  The IP and D asserted that even if this was not so, the site could be used for other temporary uses under the GPDO from which the requirement for an access under Class B could be inferred.

The Deputy Judge (Dan Kolinsky KC) agreed with the C that the D had failed to grapple with the evidence about the likelihood of the market taking place and, further that it had erred in simply inferring that the access could lawfully be created for other uses, without considering (a) what uses were actually contemplated, (b) the likelihood of them coming forward; and (c) whether the access sought would actually be required for such uses.

The Deputy Judge also agreed with the C that the D’s assessment of the heritage impacts of the development disclosed a fundamental error of logic, which rendered it unlawful. In essence the D had accepted that there would be some harm to significance of listed buildings but then reached an overall conclusion that their significance would be preserved.

Ben Fullbrook represented the successful Claimant.

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