The High Court has quashed 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, following a concession by the Defendant City Council acknowledging the unlawfulness of the grant. The application documentation had been criticised by both Historic England and the Victorian Society for its failure to consider correctly the impact on neighbouring heritage assets.
At a contested oral hearing held virtually in October 2020, following the grant of permission on the papers by Mrs Justice Lieven in respect of five grounds of review, Mrs Justice Lang also granted of permission for two further grounds, Ground 5 - a renewed EIA ground and a fresh late Ground 7 relating to a newly discovered objection from the Victorian Society. Mrs Justice Lang then gave directions for the substantive hearing.
Part way through the directions period, the Council then finally accepted that it had acted unlawfully and indicated that it would be conceding the claim but insisted it should pay no costs. In particular, it accepted the Claimant’s submissions on Ground 7 that an objection to the proposed development made by the Victorian Society was not reported to the Planning Committee and further that the objection made by the Victorian Society went beyond those matters identified by Historic England which were reported to the Planning Committee. Accordingly the Defendant accepted that the Planning Committee failed to take into account a material consideration and that it could not safely be said that the decision to grant permission for the proposed development would have been the same had that material consideration been properly taken into account. Following a contested exchange of written representations the Defendant was ordered to pay the Claimant’s costs in respect of Ground 7.
The Defendant also accepted that it was in breach of its duty of candour. Had it not been for investigations carried out by the Claimant’s advisors, it is unlikely that the Victorian Society objection would ever have come to light.
The parties reserved their position as to the other grounds of review.