At a contested remote oral hearing held on 21 October 2020 the High Court granted permission for two additional grounds in a judicial review challenge to the grant of planning permission by Birmingham City Council for what would be the second tallest building in the city of Birmingham, a proposed 51 storey residential block in the city centre and in close proximity to the new HS2 station at Curzon Street. The two grounds challenge the lawfulness of the grant on the basis of the failure to report the Victorian Society’s objection to the development to members of the Planning Committee (Ground 7) and the failure to produce an adequate screening opinion under the Environmental Impact Assessment Regulations 2017 (Ground 5).  These grounds will be added to the five already granted permission on the papers by Mrs Justice Lieven. 

Following full oral submissions from the Claimant, Defendant City Council and Interested Party developer, Mrs Justice Lang held that Ground 7 was arguable and had merit. She held that the expertise and views of the Victorian Society were important and quoting from the judgment of the Court of Arches from In re St Peter, Shipton Bellinger [2016] Fam 193 she said they “should not be brushed aside”. Its views about the harm to heritage assets, which went beyond the concerns raised by Historic England and were expressed as a formal objection, should have been drawn to the attention of members of the Planning Committee. The judge rejected arguments made by the Defendant and Interested Party that the application to rely on an additional ground, made 7 days before the date of the hearing, should be dismissed on grounds of delay. Referring to the judgment of Mr Justice Holgate in Keep Bourne End Green v Buckinghamshire (formerly Wycombe District Council) & Others [2020] EWHC 1984 (Admin), Mrs Justice Lang found that it was not a last minute application and that the delay was arguably the result of a breach of the Defendant’s duty of candour. In circumstances where the Defendant does not publish consultation responses on its online planning register, the Claimant had acted reasonably and as quickly as it could.

In relation to Ground 5, renewed orally at the hearing, Mrs Justice Lang overturned the judge who had refused permission for this ground on the papers and found that it was arguable that the Defendant’s screening opinion was inadequate, and in particular that the omission of any reference to cultural heritage was arguably a flaw. She held that it was not possible to say with any certainty that the outcome would have been the same. Mrs Justice Lang rejected the arguments of the Defendant and Interested Party that this challenge should have been brought sooner, noting that it was consistent with the Claimant’s concerns regarding the impact on heritage assets and that the Claimant was entitled to challenge the grant planning permission on the basis of a flawed screening opinion.

Grounds 5 and 7 will be heard on a date to be fixed along with five further grounds relating to the inadequate treatment of heritage issues by the Defendant, in particular the failure to properly consult Historic England, the failure to properly understand and apply Historic England’s advice, the failure to apply the correct legal and policy tests on heritage issues and the failure to give adequate reasons. 

Gregory Jones QC and Esther Drabkin-Reiter act for the Claimant, LaSalle Investment Management, instructed by Pinsent Masons.

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