The Court of Appeal has handed down judgment in LOGS v Liverpool City Council & Orrs [2020] EWCA Civ 86. Paul G Tucker QC & Constanze Bell acted for Liverpool City Council and succeeded in persuading the court that there had been no misinterpretation of ‘Green Wedge’ policy when planning permission was granted for a residential housing scheme on land adjoining Calderstones Park in Liverpool. Martin Carter represented Liverpool City Council at the hand-down of judgment in the High Court and secured permission to appeal on two grounds from Kerr J.

Paul and Constanze persuaded the Court of Appeal to entertain the appeal despite assurances that the planning permission under challenge would not be implemented, successfully arguing that whilst technically ‘academic’ the appeal raised issues of public importance and should proceed (see [5]-[11]).

The Court of Appeal dismissed the appeal in part on the basis that there had been a failure to comply with the duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and so upheld the decision to quash planning permission for the residential scheme.

The decision is a must-read for planners and lawyers interested in how to approach ‘Green Wedge’ policies and other policies dealing with ‘open character’ and related concepts. The Court of Appeal endorsed a pragmatic approach, the question of whether development would affect the predominantly open character of the Green Wedge required a realistic assessment of the impact of the development, (at [44]):

[44] When the city council is considering whether a development would “affect the predominantly open character” of a Green Wedge, the planning judgment required is not limited by Policy OE3 to a consideration of its physical or spatial effects alone, excluding visual impact. Whether it would “affect the predominantly open character” is not an automatic result of its physical presence in the Green Wedge, or of the fact that it will be visible. What is required is a realistic assessment of the impact that this development, on this site, and in its own surroundings, will have on the “the predominantly open character” of the Green Wedge. Whether that impact is acceptable, or not, is for the city council to judge, as decision-maker.

The judgment also revisits the concept of openness (see [33]-[47]) and the question of compliance with the duty under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (see [56]-[82]).



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