Town and country planning – Planning permission – Duty to give reasons – Claimant applying for judicial review of grant of planning permission for single dwelling in area of outstanding natural beauty (AONB) – Whether defendant local authority failing to provide adequate reasons for departing from recommendations in officer’s report – Whether defendant failing to determine whether proposed development accorded with local development plan – Application granted
The claimant applied for judicial review of the decision of the defendant local authority granting planning permission to the interested party for the development of a detached two storey agricultural dwelling with garage and parking on land adjacent to Rame Cottages, Rame Head, Torpoint, Cornwall. The site was located within the Cornwall Area of Outstanding Natural Beauty (AONB) and on the Heritage Coast.
The claimant was a local resident who lived about a mile from the site and had lived on the Rame Peninsula for over 30 years. He objected to the proposed development as he was concerned about the preservation of Rame Head because of its natural beauty, rare wildlife and history and was worried about the adverse impact any unsuitable development might have on the area.
The claimant argued that the decision to grant planning permission was unlawful on the grounds that: (i) the defendant failed to provide adequate reasons as to why it departed from the recommendations in the officer’s report and those made by the AONB Officer; and (ii) failed to determine whether or not, and the extent to which, the proposed development accorded with the development plan pursuant to section 38(6) of the Planning and Compulsory Purchase Act 2004.
The defendant and the interested party argued that there was no statutory duty to give reasons, and this was not a case in which the common law duty to give reasons arose. However, the point was academic as the defendant had provided adequate reasons. Further, the defendant had not misinterpreted or failed to apply any of the applicable policies in the local plan. The planning committee had fully understood the issue of the impact on the landscape and the special weight to be applied to it.
Held: The application was granted.
(1) There was no statutory duty on local planning authorities to give reasons for the grant of planning permission. However, it was well established that, in certain circumstances, a local planning authority might be under a common law duty to give reasons. Typically, they would be cases where, as here, permission had been granted in the face of substantial public opposition and against the advice officers, for projects which involved major departures from the development plan, or other policies of recognised importance, including those relating to protected sites such as AONBs. Such decisions called for public explanation, not just because of their immediate impact; but also because of their likely lasting relevance for the application of policy in future cases. Fairness required the provision of reasons in such circumstances: CPRE Kent v Dover District Council [2018] EGLR 1 followed.
The present case called out for a formulated statement of reasons for the defendant’s decision to grant planning permission in respect of the proposed development. The officer’s report clearly recommended that the application be refused, based on a number of reasons, including unacceptable harm to the AONB, which the planning committee departed from and, in doing so, granted permission which departed from the development plan.
Whilst it was right that the proposed development was “only for one dwelling”, that overlooked the particular, and highly sensitive, location of the site on a cliff-top setting within an iconic part of the AONB. The highly sensitive nature of the site was reflected by the extensive opposition to the proposed development, taking into account the scale, materials and design of the development and the impact it would have on the location. As the defendant had granted permission against the clear advice of its planning officer and the AONB officer, the defendant was under a common law duty to give reasons for the grant of planning permission.
(2) The reasons had to enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues. In the present context, those issues were, at the very least, the points of difference between the committee and the planning officer’s recommendation that permission be refused. The key issues could be identified by reference to the planning officer’s reasons for recommending that planning permission be refused and were essentially two-fold: first, whether the proposed development would cause harm to the landscape and distinctive scenic beauty of the AONB and Heritage Coast; and, secondly, whether the social and economic benefits of the proposed development outweighed the landscape harm to the AONB and Heritage Coast.
The reasons contained in the resolution passed at the planning committee meeting did not articulate any reasons identifying why, in respect of those two key issues, the committee departed from the planning officer’s recommendation. Further, no reasons had been provided why the committee thought the social and economic benefits of the proposed development outweighed the landscape harm. The fact that, as a result of the Covid-19 pandemic, there was a video recording of the meeting, which was then available online did not alter the basic principles as to the manner in which the planning reasons for a decision were identified and recorded.
(3) The decision-maker had to consider the development plan, identify any provisions in it which were relevant to the question before him, and make a proper interpretation of them. His decision would be open to challenge if he failed to have regard to a relevant policy in the development plan or failed to properly interpret it. He would also have to consider whether the development proposed in the application accorded with the development plan. In the present case, the committee had failed to properly interpret policies 7 and 23 of the local plan: City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 followed.
(4) This was a case where the defects in reasons went to the heart of the justification for permission and undermined its validity. Further, the claimant filed a detailed objection to the application and the nature of the proposed development in the AONB was of wider public interest. In those circumstances, the only appropriate remedy was to quash the defendant’s decision granting permission.
Ben Fullbrook (instructed by Richard Buxton Solicitors) appeared for the claimant; Sancho Brett (instructed by Cornwall Legal Services) appeared for the defendant; Kate Olley (instructed by Kingsley Smith Solicitors) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Cross) v Cornwall Council
