Introduction

The case of Liverpool Open And Green Spaces Community Interest Company, R (On the Application Of) v. Liverpool City Council ([2020] EWCA Civ 861) centers on the interpretation and application of local planning policies within designated Green Wedge areas, as well as the statutory duty to preserve the setting of listed buildings under the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Listed Buildings Act"). The appellant, Liverpool City Council, sought to overturn orders quashing two planning permissions it had granted for developments affecting listed buildings and Green Wedge land. The respondent, Liverpool Open and Green Spaces Community Interest Company, challenged these permissions, arguing policy misinterpretation and non-compliance with heritage preservation duties.

Summary of the Judgment

The England and Wales Court of Appeal considered two primary grounds for the challenge:

• Policy Misinterpretation: The council allegedly misinterpreted Policy OE3 of the Liverpool Unitary Development Plan (UDP), governing developments within Green Wedge areas.
• Heritage Preservation Duty: The council failed to comply with section 66(1) of the Listed Buildings Act, neglecting to give due consideration to the preservation of listed buildings and their settings.

The judge upheld the initial decision to quash the planning permissions, finding that the council had indeed misapplied Policy OE3 and failed to adequately consider conservation objections from its own Urban Design and Heritage Conservation team. Consequently, the appeal was partially allowed, specifically regarding the relocation of the miniature railway, while the permission for the housing development proposed by Redrow remained quashed.

Analysis

Precedents Cited

The judgment extensively referenced several key cases to elucidate the legal principles underpinning the decision:

• R. v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450: Emphasized that academic appeals should only be entertained if they raise points of general importance.
• Hutcheson v Popdog Ltd. (News Group Newspapers Ltd., third party) [2012] 1 WLR 782: Outlined the requirements for hearing academic appeals, focusing on general importance, consent or indemnity, and proper ventilation of arguments.
• Hamnett v Essex County Council [2017] 1 WLR 1155: Highlighted the court’s narrow discretion in hearing appeals of public law importance.
• Hook v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 486: Clarified the interpretation of "openness" in Green Belt policies, stressing that it encompasses both physical absence of development and visual impact.
• R. (on the application of Corbett) v The Cornwall Council [2020] EWCA Civ 508: Discussed the need for correct understanding of policy "as a whole" in planning judgments.
• East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 WLR 45: Established that decision-makers must give "considerable importance and weight" to preserving heritage asset settings.

Legal Reasoning

The court delved into the intricacies of Policy OE3, distinguishing it from national Green Belt policies to emphasize its unique local context governing Green Wedge areas. Key aspects of the legal reasoning included:

• Interpretation of "Predominantly Open Character": The court reinforced that this is a qualified concept requiring realistic planning judgment, not an absolute prohibition against development.
• Application of Policy OE3: The policy mandates protection of the open character, landscape, recreational, and ecological quality of Green Wedges while allowing built development that meets specific criteria.
• Duty under Section 66(1): The court scrutinized the council's adherence to the statutory duty to preserve listed buildings' settings, highlighting the omission of strong conservation objections from the Urban Design and Heritage Conservation team as a significant procedural flaw.
• Balancing Public Benefits against Harm: Emphasized that even if harm is deemed "less than substantial," it must be carefully weighed against public benefits, following the hierarchy of policies outlined in the National Planning Policy Framework (NPPF).

Impact

This judgment holds substantial implications for future planning decisions within Green Wedge areas and similar designated open spaces. Notable impacts include:

• Enhanced Scrutiny of Policy Interpretation: Local authorities must ensure accurate interpretation and application of specific local policies, recognizing their differences from national counterparts.
• Strengthened Heritage Preservation Enforcement: The stringent enforcement of statutory duties under section 66(1) underscores the necessity for comprehensive consideration of heritage asset settings, including internal conservation objections.
• Procedural Rigor in Planning Decisions: Authorities are compelled to adhere strictly to consultation processes and accurately represent expert opinions in their decision-making reports.
• Clarification of "Openness": The case elucidates the multifaceted nature of "openness," encompassing both physical development and visual impacts, guiding future assessments and policy applications.

Complex Concepts Simplified

Green Wedges

Green Wedges are designated areas within a city intended to preserve open space, preventing urban sprawl and maintaining ecological and recreational quality. Unlike the stricter Green Belt policies, Green Wedges allow for controlled development that meets specific criteria, ensuring that any built projects do not significantly undermine the area's openness and integrity.

Predominantly Open Character

This term refers to the overall openness of a designated area. It is a flexible concept that requires planners to assess whether proposed developments preserve the open nature of the area or if they introduce excessive built structures that alter its character.

Section 66(1) Duty

Under the Planning (Listed Buildings and Conservation Areas) Act 1990, local authorities must prioritize the preservation of listed buildings and their settings when considering planning permissions. This duty mandates considerable weight be given to maintaining the architectural and historic significance of these sites.

Substantial Harm

In the context of heritage preservation, "substantial harm" refers to significant negative impacts on the importance of a listed building or its setting. Development proposals causing such harm are generally deemed unacceptable unless they offer considerable public benefits that outweigh the negative effects.

Conclusion

The Court of Appeal's decision in Liverpool Open And Green Spaces Community Interest Company v. Liverpool City Council underscores the critical importance of accurate policy interpretation and rigorous adherence to statutory duties in urban planning. By clarifying the nuances of Green Wedge policies and reinforcing the obligations under section 66(1) of the Listed Buildings Act, the judgment sets a precedent that prioritizes both environmental preservation and heritage conservation. Local authorities are thus reminded to undertake meticulous planning assessments, ensuring that developments harmonize with designated open spaces and preserve the historical and architectural integrity of protected sites. This case serves as a pivotal reference for future planning disputes, emphasizing the balance between development imperatives and preservation mandates within the legal framework.