Considering an application relating to open space, assets of community value and listed buildings

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The High Court was asked to consider whether a council had correctly applied paragraph 74 of the NPPF, had given proper regard to a site’s status as an asset of community value, and had correctly consulted on the application.

Following the grant of planning permission for the redevelopment of a bowling club, the High Court was asked to consider in R (Loader) v Rother District Council (2015) whether the Council had correctly applied paragraph 74 of the NPPF, had given proper regard to the site’s status as an asset of community value, and had correctly consulted on the application.

An application was made for judicial review of the grant of planning permission for the redevelopment of a site comprising of two bowling greens (one being out of use), a pavilion, clubhouse and indoor rink. The redevelopment would provide 39 apartments for the elderly, one bowling green in place of the existing two and replacement indoor rink and club facilities. The site had been listed as an asset of community value (ACV) and faced Grade II listed buildings.

The claimant sought to argue that the Council had failed to assess the value of the out-of-use bowling green as a non-recreational open space and so had not correctly applied paragraph 74 of the NPPF. This ground failed. The Court held that the officer had satisfactorily considered the value of the site for its openness and the public views of the greens. Furthermore, the Council’s assessment of the proposed development against just one, rather than all, of the bullet points of paragraph 74 was sufficient, as those bullet points were alternative requirements rather than cumulative.

It was also held that the Council had given proper regard to the site’s ACV listing as a material consideration. The Court found that the officer’s report had made it clear that the entire site was listed, not just for its function as a bowling club (which would continue after redevelopment), but also for the amenity of open space afforded by the two bowling greens.

With regards the Council’s consultation on the application, the Court held that there was no statutory duty to consult the Victorian Society (although it would have been good practice) and so failure to do so did not give rise to a legal error. The Court did find legal error in the Council’s failure to consult English Heritage but considered that such consultation would not have affected the Council’s decision to grant the permission. The Court therefore decided not to exercise its discretion to quash the decision on that basis.

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