If a policy says you will compile a list of buildings the policy applies to, there should be a list of those buildings compiled. Sounds easy when you put it like that doesnt it?.

A recent Appeal decision highlights how Council’s must be very careful when considering whether to engage a Development Plan policy and Supplementary Planning Guidance. The case in point sought to replace a dilapidated farm building with a new dwelling. The Council applied a LDP policy relating to (non statutory) Building and Structures of Local Importance (BLSI). By so doing it refused planning permission citing conflict with the BLSI policy which the Council considered had a preference to retain the building, that both demolition and the replacement building would harm the integrity and setting of the relevant building and other alleged BSLI in a farm complex as well as to the overall design of the replacement dwelling.

We had not been involved prior to the refusal of planning permission. However, it was obvious from very first sight of the building, it was highly dilapidated despite repairs to stem further deterioration and was in a very poor state. Crucially a “list” of locally important building(s) did not actually exist under the terms of the relevant policy. In that context there was no reason for planning permission to have been withheld. Pete advised initially on application to demolish the building under the Permitted Development regime and then on the Appeal .

The appeal set out that the Council could not reasonably allege conflict with a Development Plan policy where the policy doesn’t apply in the first place - ie if there was no list of BSLI or the building wasn’t on a list that existed then the policy should not be applied. It also set out that Supplementary Guidance document which supported the Policy contained a mechanism enabling the Council to consider whether a non BLSI at the time of making the planning application could be objectively assessed for inclusion in a list whilst the planning application was considered (a not entirely satisfactory situation). Oddly however, the Council did not apply this part of its guidance during the planning application assessment either.

In his decision letter granting planning permission, the Inspector:-

• found the policy text states that a local list of such buildings will be compiled (with SPG setting out the methodology for such a list and identifying criteria and additional controls);

• disagreed with the Council argument that engagement of the policy is not conditional upon the inclusion of the building as a BSLI.

• stated the policy was predicated on identifying buildings/structures of local interest, otherwise it would be so vague that plan users would not know what constitutes a BSLI, with such a designation being applied at the discretion of the Council and

• in the absence of a rational approach to identifying the existing farm building as a BSLI, as referred to in the supporting text of policy ( and the SPG) he did not consider the policy to be applicable or relevant to the development.

In further critique of the Council approach the Inspector found it had given little in the way of meaningful explanation as to the important contribution to the character and interest of the local area the building makes by way of, for example, its distinctive appearance or architectural integrity i.e. what makes the structure a BSLI.

In concluding the Council had acted unreasonably in claiming the building was a BSLI the Inspector considered “the Council’s approach and rationale in terms of applying the policy…lacked substance and was taken without giving adequate consideration to the accompanying explanatory text”. He awarded Costs against the Council on the matter.

The case raises a salutary point where Development Plan Policy relies on a Council carrying out an action (eg compiling a list of BLSI) to engage the Policy, it clearly must do so for the Policy to take any effect. Otherwise Councils risk misapplication of policy and supplementary planning guidance at their peril.